# Hammons v. University of Maryland Medical System Corporation

> District Court, D. Maryland · July 28, 2021

URL: https://www.frixlaw.com/law-library/cases/10223006

## Case

- **Court:** District Court, D. Maryland
- **Decided:** July 28, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

:
JESSE HAMMONS
:

v. : Civil Action No. DKC 20-2088

UNIVERSITY OF MARYLAND MEDICAL :
SYSTEM CORPORATION, et al.
:

MEMORANDUM OPINION
Plaintiff Jesse Hammons, a transgender man, sought to undergo
a hysterectomy as part of his treatment for gender dysphoria.
Either he or his surgeon1 elected to schedule the surgery at the
University of Maryland St. Joseph Medical Center (“UMSJ,” or the
“Hospital”). UMSJ adheres to Catholic religious doctrine. Despite
initially authorizing the scheduling of the procedure, the
Hospital ultimately refused to authorize the procedure. Under
Catholic doctrine, the Hospital barred surgeries that resulted in
sterilization, such as a hysterectomy, except when their “direct
effect is the cure or alleviation of a present and serious
pathology and a simpler treatment is not available.” Plaintiff
asserts that his treating physicians determined that his surgery

1 Paragraph 2 of the Complaint alleges that Mr. Hammons’s
[unnamed] surgeon scheduled the procedure. But, ¶ 53 alleges that
“Mr. Hammons scheduled a hysterectomy . . . .” Thus, even though
Defendants put heavy emphasis on the surgeon as the “but for” cause
of Plaintiff’s injury in their motion and reply, it is not even
clear whether the surgeon selected the hospital or simply scheduled
the operation at the behest of Plaintiff.
was medically necessary under the relevant professional standards
of care. The Hospital ultimately cancelled the surgery — declaring
gender dysphoria was not a “sufficient medical reason” to justify
surgery in light of its sterilizing effects. As a result, about
six months later, plaintiff underwent a hysterectomy at a different
hospital.
Based on the Hospital’s unwillingness to permit the

hysterectomy, Mr. Hammons has filed suit against Defendants
University of Maryland Medical System Corporation (“UMMS”) as well
as UMSJ Health System, LLC (“UMSJ LLC”) and University of Maryland
St. Joseph Medical Center, LLC (“St. Joseph LLC,” originally
organized as “Northeastern Maryland Regional Health System, LLC”)
(collectively “Hospital LLCs”). St. Joseph LLC is a wholly owned
subsidiary of UMSJ LLC, which itself is a wholly owned subsidiary
of UMMS. According to plaintiff, the State of Maryland continues
to exercise authority and control over UMMS. (ECF 1, ¶ 20).
Plaintiff has brought a three-count complaint alleging that,
because UMMS is an arm of the state, Defendants impermissibly have

endorsed and entangled themselves with the Catholic religion and
discriminated on the basis of sex. He alleges that they violated:
the Establishment Clause of the First Amendment (Count I), the
Equal Protection Clause of the Fourteenth Amendment (Count II),
and § 1557 of the Affordable Care Act (“ACA”), 42 U.S.C § 18116(a),
as discrimination on the basis of sex. (Count III). (ECF No. 1).
He alleges that Defendants treated Mr. Hammons—as a man who is
transgender—differently from non-transgender patients who require
medically necessary hysterectomies for other medical conditions.
Presently pending is a motion to dismiss that complaint. (ECF
No. 39). The issues have been briefed, and the court now rules,
no hearing being deemed necessary. Local Rule 105.6. For the
following reasons, the motion to dismiss will be granted in part

and denied in part.
I. Background

The following facts are outlined in the complaint, including
references to information in the public domain. St. Joseph
Hospital was founded over a hundred years ago by the Sisters of
St. Francis of Philadelphia and operated as a private Catholic
hospital for most of its history. More recently, it was run by
Catholic Health Initiatives, which Plaintiff describes as a
“consortium” of three Catholic health care systems and ten
congregations. In 2012, the Hospital was in dire financial straits
and decided to put the facility up for sale. University of
Maryland Medical Center (“UMMS”) expressed interest but a
“sticking point” in the negotiations was whether the Hospital would
continue to be run as a “Catholic institution.” The Hospital,
prior to the sale, had operated according to the Catholic
Directives (“the Directives”), a series of ethical directives
created and published by the U.S. Conference of Catholic Bishops
and aimed at Catholics administering health care; the Catholic
Church forbade the sale without approval of the Archdiocese of
Baltimore and the Vatican, both of which were adamant that the
center continue to adhere to these tenets even after it divested
itself from any direct control or ownership of the Hospital. In
fact, Cardinal O’Brien publicly declared that the local Church
would “do everything possible in the months and years ahead” to

keep the Hospital operating as a Catholic center. UMMS ultimately
entered into a written agreement with the Catholic Church that the
Hospital would continue to operate under the Directives.
Ultimately, UMMS purchased the Hospital for over $200 million.
Plaintiff asserts that UMMS and its subsidiaries continue to
abide by the Directives, and they link directly to them on their
webpage “About UM SJMC [University of Maryland St. Joseph Medical
Center],” wherein UMMS holds this center out as a “Catholic acute
care hospital that observes the Ethical and Religious Directives
for Catholic Health Care Services.” (ECF No. 1, at 2 n.1) (quoting
http://www.umms.org/sjmc/about (last accessed July 16, 2020)).

The Directives include a number of core principals, including that
healthcare must “respect the sacredness of every human life from
the moment of conception until death.” What this meant in practice
is that the Directives prohibited a number of practices such as
“contraceptive interventions” that “have the purpose, whether as
an end or a means, to render procreation impossible.” In a similar
vein and at issue here, the Directives also declare that “[d]irect
sterilization of either men or women, whether permanent or
temporary, is not permitted.”
Critically, the Directives contain an exception: “Procedures
that induce sterility are permitted when their direct effect is
the cure or alleviation of a present and serious pathology and a
simpler treatment is not available.” The complaint also highlights

a later portion of the Directives, asserting, “The stated basis
for this rule is the Catholic teaching that Catholic health care
organizations are not permitted to engage in ‘immediate material
cooperation in actions that are intrinsically immoral, such as
abortion, euthanasia, assisted suicide, and direct
sterilization.’” (ECF No. 1, ¶ 3) (quoting the Directives at 19,
¶ 53 and 25, ¶ 70, which are available at
http://www.usccb.org/about/doctrine/ethical-and-religious-
directives/upload/ethical-religious-directives-catholic-health-
service-sixth-edition-2016-06.pdf (last accessed July 16, 2020)).
As a transgender man, Mr. Hammons sought to have a

hysterectomy “as a medically necessary treatment of gender
dysphoria.”2 A hysterectomy, the complaint explains, is “surgery

2 Plaintiff explains that this is “the diagnostic term for
the clinically significant emotional distress experienced as a
result of the incongruence of one’s gender with their assigned sex
and the physiological developments associated with that sex.
Gender dysphoria is a serious medical condition codified in the
Diagnostic and Statistical Manual of Mental Disorders (‘DSM-V’)
and International Classification of Diseases (‘ICD-10’). The
to remove a patient’s uterus” and is a sterilizing procedure: after
undergoing a hysterectomy, a patient can no longer become pregnant.
“Transgender men often require a hysterectomy as a gender-
affirming surgical treatment for gender dysphoria.” Plaintiff
argues that he met all the criteria under the “accepted standards
of care for treating dysphoria” published by the World Professional
Association for Transgender Health to receive a hysterectomy,3 and

his physicians recommended he receive one.
Plaintiff scheduled the surgery at UMSJ to take place on
January 6, 2020. To prepare for it he “underwent pre-operative
blood tests, an echocardiogram, and other health screenings with
his treating physician” and arranged for the operation to take
place “during a break from school” and he arranged to “to take off
time from work.”4 As the complaint explains, however:
Approximately 7–10 days before Mr. Hammons’s
surgery was scheduled to take place,
University of Maryland St. Joseph Medical

criteria for diagnosing gender dysphoria are set forth in the
DSM-V (302.85).” (ECF No. 1, at 15). Plaintiff treats the
“medically necessary” designation as presumptively and implicitly
satisfying the lone exception to the Directives’ general ban on
sterilizing operations – one that had “the direct effect” of curing
or alleviating “a present and serious pathology,” for which a
simpler treatment was “not available.”

3 These included, among other thing, documentation of
“[p]ersistent” gender dysphoria, twelve months of “continuous”
hormone therapy, and two referral letters from “qualified mental
health professionals.” (See ECF No. 1, ¶ 52 n.26).

4 It is not clear from the complaint if Mr. Hammons’ work
is school (i.e. he is a teacher), or he was both working and going
to school part-time.
Center’s Senior Vice President for Medical
Affairs and Chief Medical Officer, Gail
Cunningham, ordered the surgery canceled. Dr.
Cunningham told Mr. Hammons’s surgeon that he
could not perform Mr. Hammons’s hysterectomy
because the surgery conflicted with the
hospital’s Catholic religious beliefs and the
Catholic Directives.

(ECF No. 1, ¶ 56). Plaintiff alleges that Dr. Cunningham told his
surgeon that “according to University of Maryland St. Joseph
Medical Center’s religious beliefs, Mr. Hammons’s gender dysphoria
did not qualify as a sufficient medical reason to authorize the
procedure.” Dr. Cunningham also explained that “performing the
hysterectomy and removing an otherwise healthy organ would violate
the Catholic Directives’ command to preserve the ‘functional
integrity’” of the human body. While this purported reasoning was
therefore facially neutral as to Plaintiff’s gender identity, Mr.
Hammons argues the Directives themselves state, “[t]he functional
integrity may be sacrificed to maintain the health or life of the
person where no other morally permissible means is available.”
(Id., ¶ 58) (quoting the Catholic Directives, at 14, ¶ 29).
Following such a directive, Plaintiff asserts that surgeons at
UMSJ have removed “otherwise healthy tissue to prevent cancer or
other diseases.” Nonetheless, Dr. Cunningham informed Mr. Hammons
that UMSJ “did not consider Mr. Hammons’s gender dysphoria to be
a valid basis under the Catholic Directives to justify disrupting
the body’s ‘functional integrity.’”
When he found out about the cancellation of his surgery only
days before it was to take place, Mr. Hammons “felt shocked, angry,
afraid, and devastated.” Mr. Hammons “was not able to have his
hysterectomy performed until June 24, 2020.”5 Moreover, because
of the forced rescheduling:
Mr. Hammons had to spend more money on an
additional round of pre-operative tests; he
had to spend another six months experiencing
gender dysphoria without the therapeutic
benefits of the surgery; and he had to spend
another six months carrying the stress and
anxiety of having to mentally prepare himself
for the surgery all over again.

(Id., ¶ 60).

The complaint asserts Establishment Clause and Equal
Protection claims under § 1983 and a claim under the ACA,
requesting: A) declaratory relief that Defendants violated
Plaintiff’s rights under all three laws, B) compensatory damages
“in an amount to be determined at trial,” C) nominal damages,
D) “reasonable” costs and attorneys’ fees under 42 U.S.C. § 1988,
and E) “[s]uch other relief as the Court deems just and proper.”
(Id., ¶¶ 61-93 and A-E).

5 Defendants characterize this gap between the originally
scheduled surgery and the re-scheduled surgery as evidence that
“Mr. Hammons voluntarily delayed” seeking treatment elsewhere
after his operation was cancelled at UMSJ. (ECF No. 39-1, at 14 &
n. 15). As Plaintiff correctly asserts in opposition, however,
such a claim goes beyond the complaint and does not cast the facts
in the light most favorable to Plaintiff, which is the proper
perspective at this stage of the proceeding. (ECF No. 47, at 18
n.4).
On September 25, 2020, Defendants moved to dismiss. (ECF No.
39). They argue that 1) Plaintiff lacks standing to bring suit,
2) Plaintiff cannot sue Defendants for § 1983 violations as they
are private corporations or, if they are found to be state actors,
those claims are barred by sovereign immunity, 3) Plaintiff
otherwise fails to plead a valid Establishment Clause violation or
4) Equal Protection Claim, and 5) Plaintiff’s ACA claim fails as
a matter of law. (See ECF No. 39-1, at 2). On November 23, 2020,

Plaintiff responded in opposition (ECF No. 47), and on December
21, 2020, Defendants replied. (ECF No. 48).
II. Standing
Defendants first contend that that Plaintiff lacks standing
to bring this suit. It is a bedrock principle that Article III of
the Federal Constitution confines the federal courts to the
adjudication of “actual, ongoing cases or controversies.” Lewis
v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990) (citations omitted);
see also Carney v. Adams, 141 S. Ct. 493, 498 (2020); Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 408 (2013); Baehr v. Creig
Northrop Team, P.C., 953 F.3d 244, 252 (4th Cir. 2020). “Indeed,

‘no principle is more fundamental to the judiciary’s proper role
in our system of government than the constitutional limitation of
federal-court jurisdiction to actual cases or controversies.’”
Dreher v. Experian Info. Solutions, Inc., 856 F.3d 337, 343 (4th
Cir. 2017) (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2016)).
“Article III’s restriction of the judicial power to ‘Cases’
and ‘Controversies’ is properly understood to mean ‘cases and
controversies of the sort traditionally amenable to, and resolved
by, the judicial process.’” Uzuegbunam v. Preczewski, 141 S. Ct.
792, 798 (2021) (citations omitted). Therefore, during the
pendency of a case, an actual controversy must exist. See Steffel
v. Thompson, 415 U.S. 452, 459 n.10 (1974); Int’l Bhd. of

Teamsters, Local Union No. 639 v. Airgas, Inc., 885 F.3d 230, 234
(4th Cir. 2019); Williams v. Ozmint, 716 F.3d 801, 808 (4th Cir.
2013). In the absence of a case or controversy, “the court’s
subject matter jurisdiction ceases to exist . . . .” S.C. Coastal
Conservation League v. U.S. Army Corps. of Eng’rs, 789 F.3d 475,
482 (4th Cir. 2015).
In turn, Constitutional standing doctrine stems from the case
or controversy requirement. See, e.g., Trump v. New York, 141 S.
Ct. 530, 535 (2020); Spokeo, Inc., 136 S. Ct. at 1547. The Clapper

Court explained, “The law of Article III standing, which is built
on separation-of-powers principles, serves to prevent the judicial
process from being used to usurp the powers of the political
branches.” 568 U.S. at 408:
As explained in Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992), a plaintiff must satisfy three elements to establish
Article III standing:
First, the plaintiff must have suffered an
injury in fact — an invasion of a legally
protected interest which is (a) concrete and
particularized, and (b) actual or imminent,
not conjectural or hypothetical. Second,
there must be a causal connection between the
injury and the conduct complained of — the
injury has to be fairly traceable to the
challenged action of the defendant, and not
the result of the independent action of some
third party not before the court. Third, it
must be likely, as opposed to merely
speculative, that the injury will be redressed
by a favorable decision.

(internal quotation marks and citations omitted).
“For an injury to be traceable, ‘there must be a causal
connection between the injury and the conduct complained of’ by
the plaintiff.” Air Evac EMS, Inc. v. Cheatham, 910 F.3d 751, 760
(4th Cir. 2018) (quoting Lujan, 504 U.S. at 560). However, “the
defendant’s conduct need not be the last link in the causal
chain[.]” Id.; see also Lexmark Int’l, Inc., 572 U.S. 118, 134 n.6
(2014) (“Proximate causation is not a requirement of Article III
standing[.]”). “[W]here the plaintiff suffers an injury that is
‘produced by [the] determinative or coercive effect’ of the
defendant’s conduct ‘upon the action of someone else,’” the
traceability requirement is satisfied. Lansdowne on the Potomac
Homeowners Ass’n, Inc. v. OpenBand and Lansdowne, LLC, 713 F.3d
187, 197 (4th Cir. 2013) (quoting Bennett v. Spear, 520 U.S. 154,
169 (1997)).
Defendants do not dispute that the alleged cancellation of
Plaintiff’s surgery constituted injury for purposes of standing.
But they contend that the injury was neither traceable to nor
redressable by them.
Defendants posit that Plaintiff’s surgeon caused injury to

Plaintiff, not the Hospital, because the surgeon arranged for the
surgery to take place at UMSJ, with knowledge that the hysterectomy
was impermissible under the Directives. (See ECF 39-1 at 10,
16-17). According to Defendants, the surgeon knew the hysterectomy
was impermissible because he “voluntar[ily] agreed to comply with
the ERDs [ethical and religious directives] when accepting
admitting privileges at St. Joseph.” Thus, they argue that
Plaintiff’s injuries “stem directly from his surgeon’s mis-
scheduling a procedure that he knew could not be performed at St.
Joseph.” (Id. at 17).
This argument fails for at least two reasons. First, the

facts, seen in the light most favorable to Plaintiff, do not
establish that the surgeon had actual knowledge the surgery would
be prohibited by the Hospital under the Directives. Second, the
argument misapplies the traceability requirement.
As to the surgeon’s knowledge of the purported harm, according
to the Complaint, “adherence” to the Directives is a “condition
for medical privileges and employment at the Hospital.” (ECF 1,
¶ 28) (quoting the Directives at 9). Thus, it is reasonable to
infer that the surgeon knew that he was required to comply with
the Directives. But that does not amount to knowledge that
Plaintiff’s scheduled hysterectomy was — or would be found to be
— contrary to the Directives. It would have been far from obvious
to the surgeon or anyone reading the Directives’ that the

prohibition on sterilization and “command to preserve the
‘functional integrity’ of the human body” would necessarily bar
Plaintiff’s surgery. The complaint asserts that Plaintiff had
satisfied the relevant standards of care to deem his operation
medically necessary. Given this designation and the subsequent
approval of the surgery by Plaintiff’s “treating physicians,” even
if the surgeon knew the Directives generally barred
hysterectomies, the surgeon would have every reason to believe
that this particular hysterectomy fit within the Directives’ sole
exception to the prohibition on sterilization.
Defendants’ argument around traceability also misses the

mark. Traceability requires only that Plaintiff’s injury be
“‘fairly traceable’” to Defendants’ conduct; Defendants need not
be “‘the sole or even immediate cause’” of that injury. Md. Shall
Issue, Inc. v. Hogan, 971 F.3d 199, 212 (4th Cir. 2020) (citation
omitted); see Libertarian Party of Virginia v. Judd, 718 F.3d 308,
316 (4th Cir. 2013) (reasoning that if the defendant was “at least
in part responsible” for the plaintiff’s injury, then traceability
was satisfied).
Here, Plaintiff was to undergo a procedure at St. Joseph that,
according to Plaintiff, was medically necessary. It is undisputed
that the cancellation of that surgery constituted an injury in
fact. Moreover, the Hospital’s Chief Medical Officer “ordered the
surgery canceled.” (ECF 1, ¶ 56). Defendants do not contend that

the conduct of the Chief Medical Officer is not attributable to
them. Thus, the cancellation of the surgery was caused, “at least
in part,” by Defendants’ reliance on the Directives and application
of the Directives in this particular case. Judd, 718 F.3d at 316.
Nothing more is required.
Defendants’ citation to Lane v. Holder, 703 F.3d 668 (4th Cir.
2012) and Simon v. E. Kentucky Welfare Rts. Org., 426 U.S. 26
(1976), is also misplaced. Defendants rely on both cases for the
proposition that a third-party’s conduct can break the causal chain
between a plaintiff and defendant(s) where the injuries can be
seen to flow from that conduct. (ECF 39-1, at 17). In Defendants’

view, the conduct of Plaintiff’s surgeon caused Plaintiff injury
and broke the “‘traceability’ chain.” (Id.). Plaintiff counters
that this argument makes no sense, as the surgeon’s conduct
preceded the cancellation of the surgery, and, even if the chain
was somehow severed by the surgeon’s conduct, Defendants “picked
the chain back up” as the “final actors” in the chain of events
leading to the cancellation of the surgery. (ECF No. 47, at 17).
In reply, Defendants ignore this central, temporal flaw in their
argument and instead refute Plaintiff’s argument (in the
alternative) that they could have “picked the [causal] chain back
up”; they argue this cannot be as the complaint establishes that
“Hammons’ surgeon’s conduct is the but for cause of St. Joseph’s
cancellation.” (ECF No. 48, at 11).

Plaintiff is correct that the caselaw only focuses on
intervening conduct of a third-party, and so these cited decisions
have no bearing here. The last act in the causal chain was the
Chief Medical Officer’s cancellation of the hysterectomy, in
reliance on the Directives and the Hospital’s avowed religious
beliefs. The decision to schedule the surgery at St. Joseph set
the causal chain in motion; it could not have both initiated it
and broken it, as asserted it by Defendants. Of course, as
Defendants argue, that decision was a but-for cause of the injury,
but an event can have multiple but-for causes. See, e.g., Bostock
v. Clayton Cty., Georgia, 140 S. Ct. 1731, 1739, (2020) (“Often,
events have multiple but-for causes.”); Guessous v. Fairview Prop.
Invs., LLC, 828 F.3d 208, 217 (4th Cir. 2016) (stating that “a

cause need not work in isolation to be a but-for cause”). Here,
the scheduling of the hysterectomy and the cancellation of it were
both but-for causes of the harm to plaintiff.
Having determined that traceability is satisfied,
redressability, is easily met here. Plaintiff seeks damages based
on a past injury; he does not seek prospective relief. Recently,
the Supreme Court concluded “that a request for nominal damages
satisfies the redressability element of standing where a
plaintiff’s claim is based on a completed violation of a legal
right.” Uzuegbunam, 141 S. Ct. at 802. For standing purposes, a

judgment awarding money damages is considered sufficient to
redress past harms. See id.; Wernsing v. Thompson, 423 F.3d 732,
745 (7th Cir. 2005) (stating that “injuries compensable in monetary
damages can always be redressed by a court judgment”).
Therefore, Plaintiff has standing to bring this suit.
III. Standards of Review-Motion to Dismiss
Defendants’ arguments that Plaintiff has failed to allege the
necessary elements of his § 1983 or ACA claims are analyzed under
Fed.R.Civ.P. 12(b)(6), while the assertion that sovereign immunity
constitutes a bar to the two Constitutional claims properly is
assessed under Fed.R.Civ.P. 12(b)(1).6
A. Fed.R.Civ.P. 12(b)(6)

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the
sufficiency of the complaint. Presley v. City of Charlottesville,

6 Defendants only discuss Fed.R.Civ.P. 12(b)(1) in the
context of their standing argument, and neither party identifies
what standard applies to the sovereign immunity defense. There
has been a historical lack of clarity from the Fourth Circuit on
whether the existence of sovereign immunity is grounds for
464 F.3d 480, 483 (4th Cir. 2006). “[T]he district court must
accept as true all well-pleaded allegations and draw all reasonable
factual inferences in plaintiff’s favor.” Mays v. Sprinkle, No.
19-1964, 2021 WL 1181273, at *2 (4th Cir. Oct. 27, 2020) (reversing
a district court’s dismissal of a complaint because “we must accept
the well-pleaded facts and draw reasonable inferences in favor of
the plaintiff”). In evaluating the complaint, unsupported legal
allegations need not be accepted. Revene v. Charles Cty. Comm’rs,

882 F.2d 870, 873 (4th Cir. 1989). Legal conclusions couched as
factual allegations are insufficient, Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009), as are conclusory factual allegations devoid of
any reference to actual events. United Black Firefighters of
Norfolk v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also
Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). “[W]here
the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the 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)). Thus,

“[d]etermining whether a complaint states a plausible claim for

dismissal under Fed.R.Civ.P. 12(b)(6), for a failure to state a
claim, or under Fed.R.Civ.P. 12(b)(1), for lack of subject matter
jurisdiction. This court has said, “Judges in this district favor
analysis under Fed.R.Civ.P. 12(b)(1) as the defense “functions as
a block on the exercise of that jurisdiction.” See Borkowski v.
Balt. Cty., Md., 414 F.Supp.3d 788, 804 (D.Md. 2019) (quoting Gross
v. Morgan State Univ., 308 F.Supp.3d 861, 865 (D.Md. 2018))
(internal quotation marks omitted).
relief will . . . be a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.” Id.
B. Fed.R.Civ.P. 12(b)(1)
A motion to dismiss under Rule 12(b)(1) should be granted
“only if the material jurisdictional facts are not in dispute and
the moving party is entitled to prevail as a matter of law.”
Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945

F.2d 765, 768 (4th Cir. 1991). In the context of such a motion,
courts should “regard the pleadings as mere evidence on the issue,”
and “may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment.” Evans v.
B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). As a general
rule, the plaintiff bears the burden of proving that subject matter
jurisdiction exists. Richmond 945 F.2d at 768-69.
The Fourth Circuit has recently clarified that the defense of
sovereign immunity is a jurisdictional bar, explaining that
“sovereign immunity deprives federal courts of jurisdiction to
hear claims, and a court finding that a party is entitled to

sovereign immunity must dismiss the action for lack of subject-
matter jurisdiction.” Cunningham v. Gen. Dynamics Info. Tech.,
Inc., 888 F.3d 640, 649 (4th Cir. 2018) (citation omitted)
(discussing sovereign immunity in the context of government
contractors), cert. denied, 139 S. Ct. 417 (2018) (quoting Ackerson
v. Bean Dredging LLC, 589 F.3d 196, 207 (5th Cir. 2009); see also
Cunningham v. Lester, 990 F.3d 361,365 (4th Cir. 2021) (recognizing
sovereign immunity as a jurisdictional limitation and describing
it as “a weighty principle, foundational to our constitutional
system”). In this context, however, “the burden of proof falls to
an entity seeking immunity as an arm of the state, even though a
plaintiff generally bears the burden to prove subject matter
jurisdiction.” Williams v. Big Picture Loans, LLC, 929 F.3d 170,
176 (4th Cir. 2019) (citing Hutto v. S.C. Ret. Sys., 773 F.3d 536,

543 (4th Cir. 2014)).
IV. Counts I and II: Failure to State a Claim or a Jurisdictional
Bar to Suit

Defendants argue that Plaintiff’s “central claims” (his §
1983 claims under Count I and Count II) “are premised on a fatal
paradox.” Plaintiff asserts that Defendants are part of the
state’s “Medical System,” and thus are a state actor within the
ambit of § 1983. At the same time, the complaint alleges that
they are private corporations and thus not entitled to sovereign
immunity as a defense. Defendants, in turn, argue that Plaintiff
“cannot have it both ways”: Mr. Hammons either fails to state a
claim under these counts pursuant to Fed.R.Civ.P. 12(b)(6), or
these counts are barred by sovereign immunity as a jurisdictional
matter under Fed.R.Civ.P. 12(b)(1). (ECF 39-1, at 15, 19) (citing
ECF No. 1, ¶¶ 35, 62-64, and 70-72). Defendants are correct and
Counts I and II must be dismissed, but it must be decided whether
the dismissal is because they are not governmental actors and thus
the dismissal is with prejudice under Rule 12(b)(6), or because
they are entitled to sovereign immunity (and not persons) and thus
the dismissal is without prejudice under Rule 12(b)(1).
A. State Action under § 1983
Count I, alleging a violation of the Establishment Clause of
the of the First Amendment (as incorporated by the Fourteenth

Amendment against the States), and Count II, alleging a violation
of the Equal Protection Clause of the Fourteenth Amendment, are
both asserted pursuant to 42 U.S.C. § 1983. (ECF 1. ¶¶ 63, 68,
71, 84). Under § 1983, a plaintiff may file suit against any
person who, acting under color of state law, “subjects, or causes
to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws” of
the United States. See, e.g., Filarsky v. Delia, 566 U.S. 377
(2012); see also Owens v. Balt. City State’s Att’ys Off., 767 F.3d
379 (4th Cir. 2014), cert. denied sub nom. Balt. City Police Dep’t
v. Owens, 575 U.S. 983 (2015).

To state a claim under § 1983, a plaintiff must allege
(1) that a right secured by the Constitution or laws of the United
States was violated, and (2) that the alleged violation was
committed by a “person acting under the color of state law.” West
v. Atkins, 487 U.S. 42, 48 (1988); see Davison v. Randall, 912
F.3d 666, 679 (4th Cir. 2019); Crosby v. City of Gastonia, 635 F.3d
634, 639 (4th Cir. 2011), cert. denied, 565 U.S. 823 (2011); Wahi
v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 (4th Cir.
2009); Jenkins v. Medford, 119 F.3d 1156, 1159-60 (4th Cir. 1997).
A person acts under color of state law “only when exercising power
‘possessed by virtue of state law and made possible only because
the wrongdoer is clothed with the authority of state law.’” Polk
County v. Dodson, 454 U.S. 312, 317-18 (1981) (quoting United
States v. Classic, 313 U.S. 299, 326 (1941)); see also Philips v.

Pitt Cty. Mem’l Hosp., 572 F.3d 176, 181 (4th Cir. 2009) (“[P]rivate
activity will generally not be deemed state action unless the state
has so dominated such activity as to convert it to state action:
Mere approval of or acquiescence in the initiatives of a private
party is insufficient.”) (citations and internal quotation marks
omitted).7
Defendants maintain that this suit targets “‘merely private
conduct’” rather than state action or action taken under color of
state law. (ECF 39-1, at 19) (quoting Philips, 572 F.3d at 181).

As observed by Plaintiff, however, Defendants “generally do not
differentiate between” UMMS and the Hospital LLCs. (ECF 47, at 21
n.6). Rather, Defendants stake their state action defense on the

7 The § 1983 “under color of state law” element “‘is
synonymous with the more familiar state-action requirement’ for
Fourteenth Amendment claims, ‘and the analysis for each is
identical.’” Davison, 912 F.3d at 679 (quoting Philips 572 F.3d
at 180).
character of UMMS alone. Plaintiff’s complaint alleges that UMMS
not only owns the Hospital LLCs as subsidiaries but is also
“pervasively entwined with the[ir] management and governance.”
(Id. ¶¶ 10,11, 37). In light of the position adopted by the
parties and the common ownership of the Hospital LLCs, Defendants
will be treated as a single entity for purposes of this motion.
Defendants underscore that UMMS is designated by Md. Code

Educ. § 13-303(m) as a “private, nonprofit, nonstock corporation
. . . independent from any State agency.” (See ECF 39-1, at 19).
And, in their view, the standard for assessing whether the
cancellation of Plaintiff’s surgery constituted state action is
taken from Moore v. Williamsburg Reg’l Hosp., 560 F.3d 166 (4th
Cir. 2009), which discusses the so-called “close nexus” test.
(ECF 39-1, at 20). In Moore, the Fourth Circuit articulated that
test as follows:
[A] private entity’s action can constitute
state action if “‘there is a sufficiently
close nexus between the State and the
challenged action of the regulated entity that
the action of the latter may fairly be treated
as that of the State itself,’” . . . . The
state is deemed responsible for the private
entity’s action “if the private party acts (1)
in an exclusively state capacity, (2) for the
state’s direct benefit, or (3) at the state’s
specific behest.”
560 F.3d at 179 (citations omitted).
Plaintiff’s rejoinder to Defendants’ state action defense
depends on Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374
(1995), dealing with a government created and controlled
corporation. In both his complaint and opposition, he asserts
that Lebron compels the conclusion that UMMS is an instrumentality
of the State. (See ECF Nos. 1, ¶ 24 and 47, at 22-27). Lebron
teaches that the statutory language calling UMMS “private” and
“independent from any State agency” is not dispositive of whether
UMMS is part of the State of Maryland. And, he asserts, Lebron,
not Moore, supplies the proper standard for analyzing whether UMMS
is part of the State. (See ECF No. 47, at 22-24).

In Lebron, the plaintiff sought to display a politically
controversial advertisement on a billboard owned by the National
Railroad Passenger Corporation, “commonly known as Amtrak.” 513
U.S. at 376. Amtrak disapproved of the proposed message and did
not allow display of the advertisement. The plaintiff filed suit
against Amtrak, alleging a violation of his First Amendment rights.
Amtrak contended that it was not a state actor. According to
Amtrak, the plaintiff’s state action theory was foreclosed by the
disclaimer of governmental status in Amtrak’s authorizing statute.
Id. at 377, 392.

The Supreme Court considered whether Amtrak’s conduct
constituted state action and pointed out that the case differed
from where a private entity is alleged to have carried out
“governmental action,” as the plaintiff had alleged Amtrak was
“not a private entity but Government itself.” Lending credibility
to that assertion, the Court observed that Amtrak was established
by act of Congress “in order to avert the threatened extinction of
passenger trains in the United States,” and to serve “‘the public
convenience and necessity.’” By statute, Amtrak is “‘a for profit
corporation,’” and “its authorizing statute declares that it ‘will
not be an agency or establishment of the United States
Government.’” But six of Amtrak’s nine board members are appointed

by the President of the United States. In addition, it is
“required to submit three different annual reports to the President
and Congress.” Id. at 383-386, 391 (citations omitted) (emphasis
in original). The Court placed the creation of Amtrak amid “the
long history of corporations created and participated in by the
United States for the achievement of governmental objectives.”
Id.; see Sprauve v. W. Indian Co., 799 F.3d 226, 230 (3d Cir. 2015)
(summarizing that discussion).
The Supreme Court ultimately reasoned that the statute that
created Amtrak “is assuredly dispositive of Amtrak’s status as a
Government entity for purposes of matters that are within

Congress’s control,” such as deciding whether to subject Amtrak to
statutes like the Administrative Procedure Act, 5 U.S.C. § 551 et
seq., and federal procurement laws. Lebron, 513 U.S. at 392.
Similarly, the Court explained, Congress has the power to deprive
Amtrak of sovereign immunity. But, of relevance here, the Court
admonished:
[I]t is not for Congress to make the final
determination of Amtrak’s status as a
Government entity for purposes of determining
the constitutional rights of citizens affected
by its actions. If Amtrak is, by its very
nature, what the Constitution regards as the
Government, congressional pronouncement that
it is not such can no more relieve it of its
First Amendment restrictions than a similar
pronouncement could exempt the Federal Bureau
of Investigation from the Fourth Amendment.

Id.
Recently analyzing Lebron, the Fourth Circuit observed that
the case focused on two key factors: whether an entity served a
governmental purpose and whether it was controlled by the
government. Meridian Invs., Inc. v. Fed. Home Loan Mortg. Corp.,
855 F.3d 573, 578 (4th Cir. 2017). On the first front, because
Amtrak was “‘created by a special statute, explicitly for the
furtherance of federal governmental goals,’ it was clear that
Amtrak served a government purpose.” Id. (quoting Lebron, 513
U.S. at 398). As to the second factor, Lebron noted that the
government “controls the operation of the corporation through its
appointees,” thus acting “not as a creditor but a policymaker.”
Meridian Invs., 855 F.3d at 579 (quoting Lebron, 513 U.S. at 399);
see Dep’t of Transp. v. Ass’n of Am. Railroads, 575 U.S. 43, 55
(2015) (“Lebron teaches that . . . the practical reality of federal
control and supervision prevails over Congress’ disclaimer of
Amtrak’s governmental status.”). It held “that where, as here,
the Government [1] creates a corporation by special law, [2] for
the furtherance of governmental objectives, and [3] retains for
itself permanent authority to appoint a majority of the directors
of that corporation, the corporation is part of the Government for
purposes of” individual constitutional rights. Lebron, 513 U.S.
at 399 (bracketed numbers added); see Philips, 572 F.3d at 186
(separating the Lebron test into three parts in this fashion).
Defendants assert that the Fourth Circuit has placed “limited
reliance” on Lebron and cited the case just twice in twenty-five

years. (ECF 39-1 at 22, n.18). But, as Plaintiff points out,
Defendants cite three decisions of the Fourth Circuit in their
motion that discuss Lebron: Philips, 572 F.3d 176; Kerpen v. Metro.
Washington Airports Auth., 907 F.3d 152, 158 (4th Cir. 2018); and
Meridian Invs., 855 F.3d 573. Indeed, the Supreme Court recently
extended Lebron’s holding in Ass’n of Am. Railroads, 575 U.S. at
46, concluding that Amtrak is a governmental entity for purposes
of separation of powers issues, in addition to individual
constitutional rights. And courts in multiple circuits, including
the Fourth Circuit, continue to apply Lebron when wrestling with

questions concerning the governmental status of corporate entities
created by the federal government, see, e.g., Kerpen, 907 F.3d at
159; Meridian Invs., 855 F.3d at 578-79; Herron v. Fannie Mae, 861
F.3d 160, 167-68 (D.C.Cir. 2017), as well corporations created by
states. See, e.g., Sprauve, 799 F.3d at 231-32; Philips, 572 F.3d
at 185-86; Hack v. President & Fellows of Yale Coll., 237 F.3d 81,
83 (2d Cir. 2000), abrogated on other grounds by Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002); Potomac Construction Company,
Inc., v. Washington Metro. Area Transit Auth., GLS-21-193, 2021 WL
1516058, at *11 (D.Md. Apr. 16, 2021); White Coat Waste Project v.
Greater Richmond Transit Co., 463 F.Supp.3d 661, 688-89 (E.D.Va.
2020); Pennsylvania Pro. Liab. Joint Underwriting Ass’n v. Wolf,
324 F.Supp.3d 519, 531 (M.D.Pa. 2018).8

Other courts have used Lebron in similar circumstances,
choosing to apply its three-part test rather than other
formulations of state action doctrine. See, e.g., Sprauve, 799
F.3d at 230 (relying on Lebron given the plaintiff’s contention
that the defendant “is the government”); Hack, 237 F.3d at 83
(noting that “plaintiffs rely almost entirely upon Lebron”).

8 Defendants cite Mentavlos v. Anderson, 249 F.3d 301, 312
(4th Cir. 2001) for the proposition that “the Lebron factors are
not ‘conclusive’ for finding state action against” entities other
than Amtrak. (ECF 48 at 13). This is a mischaracterization of
Mentavlos. There, the Fourth Circuit addressed the status of a
military college, not a corporation. Mentavlos, 249 F.3d at 305.
In the portion of the discussion cited by defendants, the Fourth
Circuit identified various circumstances in which “state action
has been found . . . .” Id. at 312. It cited Lebron as one
example of a determination of state action, id., but did not
otherwise discuss the case, as the facts did not lend themselves
to analysis under Lebron. The court also cautioned that the
presence of the various “circumstances” it identified “might not
be conclusive” of the issue of state action. Id. Clearly, the
Mentavlos court was describing the difficult terrain of state
action doctrine generally, not the Lebron test specifically, as
asserted by Defendants. Defendants likewise distort Philips, 572
F.3d at 182. They cite it for a proposition that it plainly does
not contain. (See ECF No. 48, at 13).
In Puerto Rico Ports Authority v. Federal Maritime Com’n, 531
F.3d 868, 873 (D.C. Cir. 2008), the court remarked that:
Determining whether a particular entity is an arm
of the State can be a difficult exercise. The cases
generally arise in three different factual settings
involving: (1) agencies that are either arms of the State
or political subdivisions, such as cities or counties,
that are not entitled to sovereign immunity; (2)
special-purpose public corporations (like PRPA)
established by States to perform special functions;
these may be either arms of the State or non-governmental
corporations not entitled to sovereign immunity; and (3)
Compact Clause entities established by two or more
States by compact and approved by Congress; these are
sometimes considered arms of their constituent States
for sovereign immunity purposes, although the Supreme
Court has recognized a presumption against sovereign
immunity for Compact Clause entities, see Hess [v. Port
Authority], 513 U.S. [30 (1994)] at 42.2
______________
2 None of the Supreme Court’s arm-of-the-state cases
has considered a special purpose public corporation like
PRPA that was created by the State.

As noted by then Judge Kavanaugh in PRPA, as of 2008, none of
the Supreme Court cases dealt with a state created special purpose
corporation, including Lebron which was decided in 1995. And the
D.C. Circuit used a different test, from Hess v. Port Authority
Trans-Hudson Corp., 513 U.S. 30 (1994). But, as noted above, other
lower courts have used the Lebron analysis and it appears
particularly appropriate to do so for a state created corporation.
The first two elements of the three-part Lebron test easily
are met here. First, UMMS was created “by special law.” See Md.
Code. Educ. §§ 13-301 to 13-313. Second, UMMS was created “for
the furtherance of governmental objectives.” In this respect, the
“Legislative findings” set forth in § 13-302 are pertinent. The
statute expressly states that the purposes for which UMMS was
created include “provid[ing] medical care of the type unique to
University medical facilities for the citizens of the State and
region,” id. § 13-302(1), and “extend to all citizens of the State
. . . .” Id. § 13-302(1). Moreover, the Maryland legislature
declared that these purposes “serve the highest public interest

and are essential to the public health and welfare.” Id.
§ 13-302(4). The plain language of the statute reflects the
legislature’s intent to advance governmental objectives. Cf.
Sprauve, 799 F.3d at 233 (indicating that the second Lebron prong
was satisfied where statute announced that corporation was created
for “‘public purposes’”) (citation omitted).
The third Lebron element is also satisfied. This
consideration concerns whether the government “retains . . .
permanent authority to appoint a majority of the directors” of the
corporation. Lebron, 513 U.S. at 399. The element reflects the
Lebron’s concern with governmental control. See Ass’n of Am.
Railroads, 575 U.S. at 55; Meridian, 855 F.3d at 579; Herron, 861

F.3d at 168. This test, however, does not require a court to look
beyond the composition of a board of directors to ascertain
governmental control; as some courts of appeal have put it, “‘[w]e
think Lebron means what it says.’” Herron, 861 F.3d at 168
(quoting Hack, 237 F.3d at 84). Here, all members of UMMS’s
directors are appointed by the Governor of Maryland, with the
advice and consent of the State Senate. Md. Code Educ.
§ 13-304(b). Therefore, the element is readily satisfied. Thus,
under Lebron, UMMS is a governmental entity, that is, an arm or
instrumentality of government for purposes of Plaintiff’s
assertion of his individual constitutional rights. Thus, the state
action requirement of the Fourteenth Amendment and the color of

law requirement of 42 U.S.C. § 1983 are satisfied.
Defendants assert, then, that if the Medical System is an arm
of Maryland, the § 1983 claims fail because arms of a state are
not “persons,” citing Will v. Michigan Dep’t of State Police, 491
U.S. 58, 70–71 (1989); Clark v. Md. Dep’t of Public Safety & Corr’l
Servs., 316 F. App’x 279, 282 (4th Cir. 2009); and Lawson v. Green,
2017 WL 3638431, at *4 (D.Md. Aug. 23, 2017). (ECF No. 39-1,
at 16.) Defendants also contend that they are entitled to
sovereign immunity. Plaintiff counters that the inquiries are
congruent, and that only governmental agencies that are considered
arms of the State for Eleventh Amendment immunity are not “persons”

under § 1983, or on the other hand, an entity that is NOT immune
under the Eleventh Amendment is a person subject to suit under §
1983. (ECF No. 47, at 30) (citing Harter v. Vernon, 101 F.3d.
334, 338 n. 1 (4th Cir. 1996)). The Fourth Circuit there held that
“federal courts should approach these issues solely under the
rubric of the Eleventh Amendment and should not consider an
argument of ‘personhood’ under § 1983.”
B. Sovereign Immunity
Defendants contend that if UMMS is part of the State under
Lebron, then it is an instrumentality of the state entitled to
state sovereign immunity for Counts I and II. (ECF 39-1, at 23).
Plaintiff counters that UMMS is not an arm of the state for

purposes of sovereign immunity, or, in the alternative, that the
Maryland legislature waived UMMS’s sovereign immunity. (ECF 47,
at 27-29). Defendants argue in response that UMMS cannot be the
State for purposes of state action and at the same time fail to
qualify as an arm of the state for purposes of sovereign immunity.
Moreover, they contend that the State did not waive UMMS’s
immunity. (ECF 39-1, at 19).
The doctrine of state sovereign immunity predates the
Eleventh Amendment as a form of immunity the States enjoyed before
the ratification of the Constitution and originally encompassed a
broader concept. See Stewart v. North Carolina, 393 F.3d 484,
487-88 (4th Cir. 2005) (citing, among others, Alden v. Maine, 527

U.S. 706, 724 (1999) (“The Eleventh Amendment confirmed, rather
than established, sovereign immunity as a constitutional
principal”) and Hans v. Louisiana, 134 U.S. 1, 3 (1890))
(explaining that the “Eleventh Amendment immunity is but an example
of state sovereign immunity as it applies to suits filed in federal
court against unconsenting states by citizens of other states”).
The Eleventh Amendment, in turn, provides that: “The Judicial
power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another state, or by Citizens or
subjects of any Foreign State.” The Supreme Court has explained:

“Although by its terms the Amendment applies only to suits against
a State by citizens of another State, our cases have extended the
Amendment’s applicability to suits by citizens against their own
States.” Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356,
363 (2001) (collecting cases). Thus, “the ultimate guarantee of
the Eleventh Amendment is that nonconsenting States may not be
sued by private individuals in federal court.” Id. Put simply,
States are generally immune from suit for damages in federal court,
absent consent or a valid congressional abrogation of sovereign
immunity. See Coleman v. Court of Appeals of Md., 566 U.S. 30, 35
(2012); Va. Office for Prot. & Advocacy, 563 U.S. at 253-54;
Passaro v. Virginia, 935 F.3d 243, 247 (4th Cir. 2019), cert.
denied, 140 S. Ct. 903 (2020). This expansion of the Eleventh

Amendment has narrowed the gap between the two concepts
considerably and eliminated it entirely in this context.
The parties refer to Eleventh Amendment immunity and state
sovereign immunity interchangeably. (See, e.g., ECF 47 at 27-28;
ECF 48 at 14). Consistent with the parties’ usage, state sovereign
immunity will be treated as synonymous with Eleventh Amendment
immunity.
State sovereign immunity bars suit not only against a state,
but also against an instrumentality of a state, such as a state
agency, often referred to as an “arm of the state.” See Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984) (“It

is clear, of course, that in the absence of consent a suit in which
the State or one of its agencies or departments is named as the
defendant is proscribed by the Eleventh Amendment.”); see
also McCray v. Md. Transit Admin., 741 F.3d 480, 483 (4th Cir.
2014); Bland v. Roberts, 730 F.3d 368, 389 (4th Cir.
2013); Constantine v. Rectors and Visitors of George Mason Univ.,
411 F.3d 474, 479 (4th Cir. 2005).
In defining its scope, the Fourth Circuit has said sovereign
immunity applies when “the governmental entity is so connected to
the State that the legal action against the entity would . . .
amount to the indignity of subjecting a State to the coercive

process of judicial tribunals at the instance of private parties.”
Cash v. Granville Cty. Bd. Of Educ., 242 F.3d 219, 224 (4th Cir.
2001) (internal quotation marks omitted). On the other hand,
sovereign immunity “does not immunize political subdivisions of
the state, such as municipalities and counties, even though such
entities might exercise a ‘slice of state power.’” Ram Ditta v.
Md. Nat. Cap. Park & Planning Comm’n, 822 F.2d 456, 457 (4th Cir.
1987) (quoting Lake Country Estates, Inc. v. Tahoe Reg’l Plan.
Agency, 440 U.S. 391, 401 (1979)).
Neither side cites any decisions in which a court determined
that, under Lebron, or any other test, a corporate defendant was
part of state government and then proceeded to analyze whether the
defendant was entitled to state sovereign immunity. Nor is any

such caselaw readily identifiable. It may seem strained to rely
on Lebron to determine whether UMMS is part and parcel of
government for purposes of state action, and then deploy a separate
test to determine whether UMMS is an arm of the state for purposes
of sovereign immunity. Indeed, the inquiries are really synonymous
and the arm-of-the-state analysis answers both questions.
Nevertheless, the court will look to caselaw specific to the
sovereign immunity inquiry — albeit caselaw specifically focused
on whether a unit of government was state or local — to determine
if UMMS is an arm of the state pursuant to the multifactor inquiry
articulated in Ram Ditta, 822 F.2d at 457-58.
The Fourth Circuit has explained how Ram Ditta laid out four

essential factors as to whether an entity is entitled to “Eleventh
Amendment immunity”:
[T]his court has stated the formula as a
four-part, non-exclusive inquiry: (1) whether
the state treasury will be responsible for
paying any judgment that might be awarded; (2)
whether the entity exercises a significant
degree of autonomy from the state; (3) whether
it is involved with local versus statewide
concerns; and (4) how the entity is treated as
a matter of state law.

Ristow v. S.C. Ports Auth., 58 F.3d 1051, 1052 n.3 (quoting Ram
Ditta, 822 F.2d at 457-48); see also U.S. ex rel. Oberg v. Pa.
Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014)
(identifying and applying the above “four nonexclusive factors”).
As Plaintiff points out, the first of the Ram Ditta factors
has been described as the most important. (ECF 47, at 29-30);
see, e.g., Hess, 513 U.S. at 49 (remarking that “the state treasury
factor is the most important factor to be considered”) (citation
omitted); Hutto, 773 F.3d at 543 (same). And Plaintiff notes that
the Supreme Court has observed that the first factor is “generally
accorded . . . dispositive weight.” Hess, 513 U.S. at 49.9 Here,
Defendants assert that the State would not pay any judgment against
UMMS. (ECF 39-1, at 20) (citing Md. Code Educ. § 13-310).10 Thus,

9 Although the Ram Ditta factors are referred to only
obliquely in Hess, the Fourth Circuit quickly dispelled any
suggestion that Hess had displaced the Ram Ditta test. Gray v.
Laws, 51 F.3d 426, 431 n.2 (4th Cir. 1995) (“In the end, we do not
believe that Hess, as it applies to single state entities,
materially altered the Eleventh Amendment analysis we formulated
in Ram Ditta . . . .”).

10 Section 13-310 is titled “Payment of obligations of
Corporation.” It provides:

Obligations of [UMMS]:
(1) Are payable only from assets of
[UMMS]; and
(2) Are not debts or obligations of the
University or the State.
the first factor strongly suggests that UMMS is not an arm of the
state.
The Fourth Circuit has indicated that the analysis may end if
the first factor comes out the other way. “[I]f the state treasury
will pay the judgment, the entity is immune from suit, and the
other Ram Ditta factors need not be considered.” Harter v. Vernon,
101 F.3d 334, 337 (4th Cir. 1996). But the opposite is true here.
Moreover, in Oberg the Fourth Circuit concluded that the first

factor weighed heavily against finding that the defendant was an
arm of the state, but nonetheless considered the other three
factors. 745 F.3d at 139-41. Therefore, it is appropriate to
address the remaining factors.
Here, the second Ram Ditta factor regarding UMMS’s autotomy
is interrelated with the fourth factor, how UMMS is treated under
Maryland law, and so the two are discussed in tandem below. The
third Ram Ditta factor suggests that UMMS is an arm of the state.
The Maryland General Assembly declared that UMMS was created to
“provide medical care . . . for the citizens of the State and

region,” Md. Code Educ. § 13-302(1), and that such care “extend[s]
to all citizens of the State . . . .” Id. § 13-302(2).11 This
language reflects an involvement with statewide concerns, rather

11 Although St. Joseph may serve a more localized
population than UMMS as a whole, Defendants do not differentiate
the Hospital LLCs from UMMS for purposes of this analysis.
than local ones, thus tilting the third factor in favor of
Defendants.
The fourth factor, which looks to the treatment of UMMS under
Maryland law, points in the same direction. To be sure, the State
legislature designated UMMS a “private, nonprofit, nonstock
corporation” that is “independent from any State agency.” Md.
Code Educ. § 13-303(m). But the Court of Appeals of Maryland has

determined that UMMS is an instrumentality of the State for
purposes of Maryland’s Public Information Act, notwithstanding the
statutory language in § 13-303(m). Napata v. Univ. of Md. Med.
Sys. Corp., 417 Md. 724, 737 (2011). In reaching this
determination, the Napata Court examined “[a]ll aspects of the
interrelationship between the State and” UMMS. Id. at 733
(citation omitted) (alteration in original). The court summarized
that examination as follows,
[W]e agree with the Court of Special Appeals
that “the attributes of UMMS’s relationship
with the State that point to its being an
instrumentality of the State predominate over
those pointing to its private character”
. . . . UMMS did not exist until the State
assets were transferred to the corporation.
Its aim of providing health care to . . .
Maryland residents serves a public purpose.
Moreover, the State remains a visible and
compelling force in UMMS’s operations. All
voting members on UMMS’s Board of Directors
are appointed by the Governor, and two of
these flow from nominations by the respective
leaders of each legislative chamber.
Additionally, unlike an independent hospital,
UMMS is not free to compete with the
University for private gifts or private or
federal grants, and its annual contracts must
be approved by the Regents of the University
[of Maryland]. Should UMMS become financially
unstable, the Treasurer may loan State funds
to UMMS as necessary. Finally, the Regents
and the Board of Public Works have the power
to dissolve UMMS if they determine that it is
not fulfilling its purpose. In that event,
UMMS’s assets will revert to the State. These
facts compel the conclusion that UMMS is an
instrumentality of the State.

Id. at 737, (citation omitted).
Napata’s in-depth assessment of the relationship between UMMS
and the State is also pertinent to the second Ram Ditta factor,
which concerns the degree to which UMMS exercises autonomy from
the State. It is clear from Napata that, although UMMS may
function like an independent corporate medical system in some
respects, it is nevertheless tethered to State government and
subject to State oversight in important ways. Notably, Plaintiff
does not offer any argument as to this factor, or any of the Ram
Ditta factors, other than the first. (See ECF 47 at 29-30).
Moreover, had Plaintiff contended that UMMS is sufficiently
autonomous from the State to tilt the second factor in his favor,
he would have undermined the allegation in his Complaint that the
State “continues to exercise ultimate authority and control over
the governance of UMMS.” (ECF 1, ¶ 20).
UMMS is an arm of the State for purposes of sovereign
immunity.
The Fourth Circuit has identified three exceptions to the
Eleventh Amendment’s prohibition of suit against a state or an arm
of a state. In Lee-Thomas v. Prince George’s County Public
Schools, 666 F.3d 244, 249 (4th Cir. 2012), it said:
First, Congress may abrogate the States’
Eleventh Amendment immunity when it both
unequivocally intends to do so and acts
pursuant to a valid grant of constitutional
authority. [] Garrett, 531 U.S. [at] 363
. . . . Second, the Eleventh Amendment
permits suits for prospective injunctive
relief against state officials acting in
violation of federal law. Frew ex rel. Frew
v. Hawkins, 540 U.S. 431, 437 (2004). . . .
Third, a State remains free to waive its
Eleventh Amendment immunity from suit in a
federal court. Lapides [] 535 U.S. [at] 618
[].
(internal quotations omitted).
As to the third exception, relevant here, the test to
determine whether a state has waived its immunity from suit in
federal court is a “stringent” one. Atascadero State Hosp. v.
Scanlon, 473 U.S. 234, 239-40 (1985), superseded on other grounds,
as recognized in Lane v. Pena, 518 U.S. 187, 198 (1996); see FAA
v. Cooper, 566 U.S. 284, 290 (2012) (stating that a waiver of
sovereign immunity occurs “only where stated by the most express
language or by such overwhelming implication from the text as will
leave no room for any other reasonable construction” and without
recourse to legislative history); accord Pense, 926 F.3d 97, 101
(4th Cir. 2019); Lee-Thomas, 666 F.3d at 250-51; see also
Cunningham. 990 F.3d at 365 (citing Cooper, 566 U.S. at 290)
(recognizing that “the Court explicitly and routinely construes
ambiguous text so as to obviate any inference of waiver.”)
Plaintiff contends that the Maryland legislature explicitly
waived sovereign immunity for UMMS. He locates the purported
waiver in Md. Code Educ. § 13-303(a)(2), which provides, in
relevant part, that UMMS “shall not be a State agency . . . and is
not subject to any provisions of law affecting only governmental
or public entities.” (See ECF 47 at 28). In essence, Plaintiff

construes the second clause to encompass state sovereign immunity.
(See id.).
Defendants counter that UMMS’s authorizing statute expressly
reserved sovereign immunity. (ECF 48, at 14). They point to Md.
Code Educ. § 13-308(f), which states, “Sovereign immunity not
waived or abrogated.- Nothing contained in this subtitle shall be
deemed or construed to waive or abrogate in any way the sovereign
immunity of the State or to deprive the University or any officer
or employee thereof of sovereign immunity.”
Of course, any waiver of sovereign immunity must be express and
unequivocal.12 See Cunningham, 990 F.3d at 365. Even assuming

12 Pense is instructive on just how narrowly purported
waivers are construed. 926 F.3d at 102. There, the Fourth Circuit
considered whether a separate Maryland statute waived the State’s
sovereign immunity. That statute, Md. Code State Gov’t § 20-903
provides: “The State, its officers, and its units may not raise
sovereign immunity as a defense against an award in an employment
discrimination case under this title.” The court explained that
because that language “does not ‘specify the State’s intention to
subject itself to suit in federal court,’ that provision cannot be
that the provision relied upon by Defendants does not pertain to
UMMS specifically, Plaintiff’s argument still fails because the
statutory language he cites does not contain an express waiver of
sovereign immunity. According to Plaintiff, the statement in
§ 13-303(a)(2) that UMMS “is not subject to any provisions of law
affecting only governmental or public entities” constitutes
waiver. Yet, neither the term “sovereign immunity” nor any

reference to suit in federal court appears in the statute. Insofar
as Plaintiff is suggesting that such waiver can be implied, he
does not back up his claim with any legal authority. (See ECF 47,
at 28). He draws only on Napata, which construed this statutory
language expressly to exempt UMMS “from laws affecting only public
entities.” 417 Md. at 739-40. Napata, however, did not concern
state sovereign immunity and thus has no bearing on this specific
issue. Defendants are shielded by sovereign immunity on Counts I
and II.13

read to waive the State’s Eleventh Amendment immunity.” Pense,
926 F.3d at 102 (emphasis in original) (quoting Atascadero, 473
U.S. at 241).

13 Defendants do not contend that sovereign immunity
applies to Count III, under the ACA. Several trial courts have
ruled that Congress validly conditioned receipt of federal funds
on a consent to waive immunity, see, e.g., Kadel v. Folwell, 446
F.Supp.3d 1, 17 (M.D.N.C. 2020); Boyden v. Conlin, 341 F.Supp.3d
979, 999 (W.D.Wis. 2018); Fain v. Crouch, 2021 WL 2004793
(S.D.W.Va. May 19, 2012). The ruling in Kadel, however, is
currently on appeal before the Fourth Circuit, which heard oral
argument in March. Kadel v. N.C. State Health Plan, No. 20-1409
(4th Cir. argued Mar. 11, 2021).
V. Count III: the ACA Claim
Section 1557, through its incorporation of Title IX,
prohibits, inter alia, discrimination on the basis of sex and the
denial of benefits on the basis of sex in any health program or
activity receiving federal funding. To state a claim under Title
IX, a plaintiff must also allege that he was harmed by a
defendant’s improper conduct. Grimm v. Gloucester Cty. Sch. Bd.,

972 F.3d 586, 616 (4th Cir. 2020).
Here, Mr. Hammons alleges that Defendants are responsible for
a health program or activity that receives federal funds. (ECF
No. 1, ¶¶ 14, 88). And, Plaintiff alleges that he was harmed by
the cancellation of his scheduled hysterectomy at St. Joseph.
(Id. , ¶ 60). Defendants do not take issue with the sufficiency of
these allegations. Thus, the remaining question is whether
Plaintiff alleges unlawful discrimination or denial of benefits on
the basis of sex.
Neither side relies on the ACA’s implementing regulations.
Defendants point out that although the U.S. Department of Health

and Human Services, under former President Trump, promulgated
regulations that could have a bearing on this case, those
“regulatory changes” have been enjoined. (See ECF 39-1 at 29 n.24)
(citing Whitman-Walker Clinic, Inc. v. U.S. Dep’t of Health & Hum.
Servs., 485 F. Supp. 3d 1 (D.D.C. 2020); Walker v. Azar, 20-cv-
2834 (FB) (SMG), 2020 WL 4749859 (E.D.N.Y. Aug. 17, 2020)). Rather
than substantively addressing the status and relevance of those
regulations, Defendants chose to “reserve[] [their] right to
present additional arguments based on those regulations.”
(ECF 39-1, at 29 n.24).
Nevertheless, during the pendency of this motion, Plaintiff
submitted a “Notice of Supplemental Authority” that the Department
of Health and Human Services (“HHS”) has issued a new “Notification

of Interpretation and Enforcement” that clarifies the protections
granted under Title IX, and therefore § 1557, by extension.
(ECF No. 50). It announces that, “This Notification is to inform
the public that, consistent with the Supreme Court’s decision in
Bostock and Title IX, beginning May 10, 2021, the Department of
Health and Human Services (HHS) will interpret and enforce Section
1557’s prohibition on discrimination on the basis of sex to
include: (1) discrimination on the basis of sexual orientation;
and (2) discrimination on the basis of gender identity.” (ECF No.
50-1, at 2).
Plaintiff, in turn, states:

HHS’s position supports Mr. Hammons’s claim
that by refusing to perform his hysterectomy
in aid of his sex reassignment, while agreeing
to perform hysterectomies not associated with
sex reassignment, Defendants discriminated
against him on the basis of sex. The
Notification is therefore relevant, post-
submission authority supporting Mr. Hammons’s
argument that Defendants’ motion to dismiss
the Section 1557 claim should be denied.
(ECF No. 50, at 2). He goes on to argue that “Fourth Circuit
precedent also treats discrimination based on gender identity as
sex-based discrimination and subject it to heightened scrutiny
under the Equal Protection Clause.” Id. (citing Grimm, 972 F.3d
at 606).
Defendants’ response attempts to distinguish Grimm by arguing
that the St. Joseph’s policy at issue here, unlike in that case,

is facially neutral. They also argue that this recent HHS
interpretation does not apply as “they were not in effect at the
time Hammons alleges the conduct took place.” (ECF No. 51, at 1-
2). This latter argument fails to note Plaintiff’s concession
that this is “post-submission authority” and his reliance on HHS’s
guidance as merely persuasive support to his claim, and not any
kind of binding authority.
This is all beside the point, as Bostock already made clear
that the position stated in HHS’s interpretation was already
binding law. The Fourth Circuit looks to Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., which concerns
employment, to guide the “evaluation of claims under Title IX.”
Grimm, 972 F.3d at 616; see Jennings v. Univ. of N.C., 482 F.3d

686, 695 (4th Cir. 2007). Thus, as the Grimm court explained, 972
F.3d at 616, the Supreme Court’s decision in Bostock, 140 S. Ct.
1731, is consequential for claims brought under both statutes.
In Bostock, the Supreme Court held that discrimination on the
basis of homosexuality or transgender status necessarily
constitutes discrimination on the basis of sex, which is prohibited
under Title VII. The plain language of Title VII, the Court
observed, establishes a but-for causation standard. And, as noted,
events often “have multiple but-for causes.” Thus, “so long as
the plaintiff’s sex was one but-for cause” of an alleged

discriminatory act, “that is enough to trigger the law.” Further,
the Court observed that transgender status and sex are
inextricable. It opined, “Just as sex is necessarily a but-for
cause when an employer discriminates against . . . transgender
employees, an employer who discriminates on these grounds
inescapably intends to rely on sex in its decisionmaking.”
(Id., at 1739-44) (emphasis in original).
Here, St. Joseph’s Chief Medical Officer, Dr. Cunningham,
“ordered” the cancellation of Plaintiff’s hysterectomy “because
the surgery conflicted with the hospital’s Catholic religious
beliefs and the Catholic Directives.” (ECF 1, ¶ 56). In

particular, Dr. Cunningham informed Plaintiff’s surgeon that the
hysterectomy conflicted with the Directives’ prohibition on
sterilization, and their “command to preserve the ‘functional
integrity’ of the human body.” (Id., ¶¶ 57-58).
Both the prohibition on sterilization and the imperative
concerning bodily integrity permit exceptions. “Procedures that
induce sterility are permitted when their direct effect is the
cure or alleviation of a present and serious pathology and a
simpler treatment is not available.” The Directives also allow
the “functional integrity of the person [to] be sacrificed to
maintain the health or life of the person when no other morally
permissible means is available.” Directives at 14 and 19.
In Plaintiff’s view, his scheduled hysterectomy fell within

the scope of both exceptions. His “treating physicians
recommended,” on the basis of the authoritative WPATH Standards of
Care, that Plaintiff receive a hysterectomy as a medically
necessary treatment for gender dysphoria.” Moreover, Plaintiff
“satisfied all of the criteria for a medically necessary
hysterectomy under the WPATH Standards of Care.” (ECF 1, ¶ 52).
This included not only doctors’ referral letters but a documented
course of hormone therapy over the previous year. Nevertheless,
Dr. Cunningham informed Plaintiff’s surgeon that Plaintiff’s
condition of “gender dysphoria did not qualify as a sufficient
medical reason to authorize the procedure,” and that the Hospital

“did not consider Mr. Hammons’s gender dysphoria to be a valid
basis under the . . . Directives to justify disrupting the body’s
‘functional integrity.’” (Id. ¶¶ 57-58).
In short, Mr. Hammons alleges that the Hospital denied
Plaintiff the benefits of its services because he has gender
dysphoria, a condition inextricably linked to being transgender.
Although Plaintiff’s treating physicians had determined that
hysterectomy was a medically necessary treatment for his
condition, the Hospital refused to perform the surgery,
specifically because it was linked to this condition. As explained
in Bostock, a defendant who takes adverse action against someone
for being transgender “inescapably intends to rely on sex in” his
decisionmaking. 140 S.Ct. at 1742. Thus, Plaintiff alleges that

the Hospital denied him the benefits of its services on the basis
of sex, in violation of § 1557.
Moreover, Plaintiff alleges that St. Joseph recognizes the
applicability of the pertinent exceptions contained in the
Directives with other types of patients. For instance, surgeons
at the Hospital “remove otherwise healthy tissue to prevent cancer
or other diseases” and “perform purely cosmetic surgeries.”
(ECF 1, ¶ 58). Nonetheless, the Hospital regarded Plaintiff’s
medical need differently because he is transgender, and therefore
cancelled his procedure. In this regard, Plaintiff alleges that
the Hospital discriminated against him on the basis of sex by

treating him “‘worse than others who are similarly situated.’”
Grimm, 972 F.3d at 618 (quoting Burlington N. & Santa Fe Ry. v.
White, 548 U.S. 53, 59, (2006)); see Bostock, 140 S. Ct. at 1740-
44; see also Kadel, 446 F. Supp. 3d at 17 (concluding that the
transgender plaintiff stated a sex discrimination claim under
§ 1557); Tovar v. Essentia Health, 342 F. Supp. 3d 947, 953
(D.Minn. 2018) (same); Prescott v. Rady Children’s Hosp.-San
Diego, 265 F.Supp.3d 1090, 1099-1100 (S.D.Cal. 2017) (same).
Defendants’ arguments do not require a different result. For
one, Defendants assert that to state a claim of sex discrimination
under § 1557, a plaintiff must allege that the discrimination was
intentional and that it was a “‘substantial’ or ‘motivating factor’
for” the defendant’s actions. (ECF 48, at 21) (quoting Weinreb v.
Xerox Bus. Servs., LLC Health & Welfare Plan, 323 F. Supp. 3d 501,
521 (S.D.N.Y. 2018), adhered to on denial of reconsideration sub

nom. Weinreb v. Xerox Bus. Servs., No. 16-CV-6823 (JGK), 2020 WL
4288376 (S.D.N.Y. July 27, 2020)). Of course, Weinreb is not
binding authority on this court; the Fourth Circuit has not
employed the same language when articulating the standard for sex
discrimination under § 1557 and Title IX.14 Moreover, even if
Plaintiff were required to allege that discrimination was a
substantial or motivating factor in Defendants’ actions, the
Complaint would still pass muster. Plaintiff plainly alleges that
his hysterectomy was cancelled and that therefore he was denied

necessary medical treatment, purely because of his transgender
status, and thus because of his sex. Under the logic and

14 Since Weinreb was decided, the Second Circuit has
articulated the pertinent standard differently. See Doe v.
Columbia Univ., 831 F.3d 46, 56 (2d Cir. 2016) (stating that under
Title IX, a complaint “is sufficient with respect to the element
of discriminatory intent . . . if it pleads specific facts that
support a minimal plausible inference of . . . discrimination”).
instruction of Bostock, Defendants “inescapably” intended to rely
on sex in their decisionmaking.
Mr. Hammons has stated a claim for sex discrimination under
§ 1557 of the ACA.
VI. Conclusion
For the foregoing reasons, the motion to dismiss will be
granted as to Count I and Count II and denied as to Count III. A

separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10223006. Public record. Not legal advice.