SOUTH v. FEDERAL BUREAU OF PRISONS

[Doc. No. 17, 22]

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

MS. JASON SOUTH,

Plaintiff,

v. Civil No. 20-09045 (RBK)(MJS)

FEDERAL BUREAU OF PRISONS,

Defendants.

O P I N I O N & O R D E R

Plaintiff Jason South (“plaintiff”), a transgender inmate

presently confined at FCI Sheridan, a correctional institution

with the Federal Bureau of Prisons (“BOP”), filed a hand-written

pro se complaint and motion for a preliminary injunction on July

17, 2020 alleging civil rights violations against the BOP and

seeking transfer to a female facility. Upon screening plaintiff’s

complaint under 28 U.S.C. § 1915, Judge Kugler issued an Order on

August 6, 2020 dismissing with prejudice plaintiff’s Bivens claims

against the BOP but permitting claims brought under the

Rehabilitation Act and Affordable Care Act to proceed. Doc. Nos.

4, 5; South v. Fed. Bureau of Prisons, No. CV209045, 2020 WL

4530050 (D.N.J. Aug. 6, 2020). The Order further directed the

appointment of pro bono counsel and the filing of an amended

complaint within (20) days of appointment. Doc. No. 5. On August

11, 2020, plaintiff filed a motion to amend the complaint. Doc.

No. 6. On October 5, 2020, plaintiff filed a motion to transfer

this case to the Eastern District of Michigan. Doc. No. 10. Pro

bono counsel was then appointed on October 28, 2020. Doc. No. 11.

Shortly thereafter, on November 2, 2020, the Court issued an Order

[Doc. No. 14] denying plaintiff’s motion to amend [Doc. No. 6] to

permit counsel to evaluate the case and determine if amendment was

appropriate. Plaintiff subsequently filed a motion to withdraw the

motion to transfer on November 10, 2020 [Doc. No. 15], which the

Court granted on January 20, 2021 [Doc. No. 16].

On March 9, 2021, plaintiff brought the present motion seeking

leave to amend the complaint to name Carl Sceusa1 (“defendant

Sceusa”) and allege a novel claim against him, remove certain

claims against BOP, and add factual averments. Specifically, the

Proposed Amended Complaint asserts claims against defendant Sceusa

for cruel and unusual punishment under the Eighth Amendment and

discrimination under the Affordable Care Act (“ACA”), as well as

a claim against BOP for violation of the Rehabilitation Act of

1973 (“RA”).2 Doc. No. 17 (the “Motion”). The Motion is unopposed.

1 Plaintiff proposes to allege that Carl Sceusa is a medical doctor

employed by or at FCI Fort Dix.

2 Plaintiff’s Proposed Amended Complaint makes two references to

42 U.S.C. § 1983. See Proposed Amended Compl. ¶¶ 1, 5. There being

no causes of action expressly asserted under § 1983 in Counts One,

Two, or Three, no state actors named, and no mention of § 1983 in

The Court exercises its discretion to decide plaintiff’s Motion

without oral argument. See FED. R. CIV. P. 78; L. CIV. R. 78.1. For

the reasons to be discussed, plaintiff’s Motion is GRANTED.

Factual Background

The Court draws the following facts from plaintiff’s proposed

amended complaint and takes them as true for the purposes of the

Motion. Plaintiff is a transgender inmate, male to female, who has

been in federal custody for fifteen years and housed in ten male

correctional facilities. Proposed Amended Compl. ¶ 11. Plaintiff

suffers from numerous afflictions, including but not limited to

borderline personality disorder, bipolar disorder, panic disorder,

depression, anxiety, and post-traumatic stress disorder and has a

history of self-injury, suicidal ideation, and suicide attempt.

Id. at ¶ 12. In May 2019, while housed at FCI Danbury in Danbury,

Connecticut, BOP Psychology Services diagnosed plaintiff with

gender dysphoria. Id. at ¶ 14. For inmates diagnosed with gender

dysphoria, BOP prescribes gender-affirming hormone therapy. Id. at

¶ 15. In or around November 2019, plaintiff was prescribed and

began consuming 6 milligrams (“mg”) of Estradiol, an estrogen

hormone treatment. Id. at ¶ 20. Plaintiff alleges that in or around

December 2019, plaintiff was transferred from FCI Danbury to FCI

Fort Dix following a sexual and physical assault against plaintiff

counsel’s briefing, the Court does not construe these references

as plaintiff’s intent to pursue a claim under that statute.

by inmates at FCI Danbury. Id. at ¶ 21. While confined at Fort

Dix, plaintiff continued receiving 6 mg of Estradiol. Id. at ¶ 23.

Plaintiff alleges that in or around March 2020, plaintiff was

sexually harassed by two inmates at Fort Dix. Id. at ¶ 24.

Plaintiff then requested transfer to a female facility. Id.

On April 23, 2020, defendant Sceusa discontinued plaintiff’s

standing order for 6 mg daily of Estradiol and submitted a new

medical order reducing plaintiff’s Estradiol treatment from 6 mg

to 2 mg daily. Id. at ¶ 25. On May 18, 2020, plaintiff received a

Suicide Risk Assessment after being removed from her unit following

a disagreement with another inmate. Id. at ¶ 26. While being

assessed by Psychology Services for potential suicidal ideation,

plaintiff was informed that incident reports would be filed against

her and that she was being transferred to the Special Housing Unit.

Id. This allegedly exacerbated plaintiff’s distress, and she

responded by attempting to stab herself in the leg with a

mechanical pencil. Id. Plaintiff was then placed on suicide watch

immediately thereafter at which time she threatened to hang

herself, expressed a desire to have her male genitals cut off,

banged her head on the wall causing it to bleed, tied a blanket

around her neck and cut her wrist using a damaged mesh wall in the

suicide watch cell. Id. at ¶ 27. Plaintiff then informally

complained to Psychology services that she believed her missed

hormone treatments contributed to her negative behavior. Id. at ¶

28. The next day, on May 19, 2020, defendant Sceusa increased

plaintiff’s Estradiol prescription from 2 mg back to 6 mg. Id. at

¶ 29. Plaintiff attempted suicide again on May 20, 2020. Id. at ¶

30.

On May 22, 2020, BOP’s National Inmate Appeals Administrator

issued an Administrative Remedy Response (“Response”) addressing

plaintiff’s sexual harassment complaint and concern with defendant

Sceusa having decreased the dose of Estradiol. Id. at ¶ 31. The

Response notified plaintiff that the Transgender Executive Council

denied the request for transfer to a female facility because

plaintiff’s placement in a male facility was appropriate based on

factors set forth in the BOP’s Transgender Offender Manual. Id. In

addition, the Response stated that plaintiff’s most recent

laboratory results indicated her hormone levels had not been

maximized or stabilized. Id. As such, the Response stated the

medications were adjusted and hormone levels would continue to be

monitored by Health Services staff at the institution. Id.

Plaintiff was seen again by defendant Sceusa on June 8, 2020 and

alleges that in addition to referring to plaintiff in the male

pronoun against her wishes, defendant Sceusa denied plaintiff’s

request for a prophylactic medication to prevent sexually

transmitted disease. Id. at ¶ 33.

In sum, plaintiff proposes to allege that the BOP and

defendant Sceusa’s intentional actions caused plaintiff severe

physical, mental, and emotional anguish resulting in self-harm,

delayed plaintiff’s male to female transition, and negatively

impacted plaintiff’s ability to transfer to a female correctional

facility. Id. at ¶ 1.

Discussion

Motions to amend are governed by FED. R. CIV. P. 15. See Mullin

v. Balicki, 875 F.3d 140, 149 (3d Cir. 2017). Rule 15(a) permits

a party to amend a pleading once as a matter of course within

twenty-one (21) days after serving the pleading or twenty-one (21)

days after a responsive pleading or service of a motion under Rule

12(b), (e), or (f), whichever is earlier. Fed. R. Civ. Pro. 15 (a)

(1) (A)-(B). “In all other cases, a party may amend its pleading

only with the opposing party’s written consent or the court’s

leave.” FED. R. CIV. P. 15(a)(2). As no service has yet been made

on any defendant in this action, plaintiff may only amend the

complaint with leave of the Court.

Pursuant to Rule 15(a)(2), “[t]he court should freely give

leave when justice so requires.” Id. In determining if leave to

amend might be reasonably denied, courts are guided by the factors

outlined in Foman v. Davis, 371 U.S. 178, 83 S. Ct. 227, 9 L. Ed.

2d 222 (1962). These factors, while not exhaustive, permit denial

of leave to amend based on “undue delay, bad faith or dilatory

motive on the part of the movant, repeated failure to cure

deficiencies by amendments previously allowed, undue prejudice to

the opposing party by virtue of allowance of the amendment,

futility of amendment, etc.” Id. at 182. While the grant or denial

of an opportunity to amend remains within the Court’s discretion,

“outright refusal to grant the leave without any justifying reason

appearing for the denial is not an exercise of discretion; it is

merely abuse of that discretion and inconsistent with the spirit

of the Federal Rules.” Forman, 371 U.S. at 182; see also Mullin,

875 F.3d at 150.

Based on the record before it, the Court finds plaintiff has

sought amendment without undue delay, bad faith, or dilatory

motive, and in a manner consistent with Judge Kugler’s Opinion and

Order. Doc. Nos. 4, 5. Additionally, no party will be prejudiced

within the meaning of Rule 15 by granting plaintiff’s motion. The

Court will therefore proceed to consider whether plaintiff’s

proposed amendments are futile.

In assessing futility, the District Court applies the same

standard of legal sufficiency as applies under Rule 12(b)(6).

Travelers Indemnity Co. v. Dammann & Co., Inc., 594 F.3d 238, 243

(3d Cir. 2010) (citation omitted). Accordingly, the Court must

accept as true all well-pleaded factual allegations raised in

plaintiff’s proposed complaint, and must determine whether the

facts as alleged raise a facially plausible claim on the grounds

asserted. Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d

Cir. 2011). A complaint need not provide detailed factual

allegations, but must provide facts sufficient to show a plausible

cause of action. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)

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

“If a proposed amendment is not clearly futile, then denial of

leave to amend is improper.” Harrison Beverage Co. v. Dribeck

Importers, Inc., 133 F.R.D. 463, 468 (D.N.J. 1990).

Before addressing plaintiff’s proposed claims individually,

as an initial matter, the Court cannot find that the statute of

limitations would operate as a bar here where the alleged violative

conduct occurred in 2020. See Bethel v. Jendoco Const. Corp., 570

F.2d 1168, 1174 (3d Cir. 1978) (“If the [statute of limitations]

bar is not apparent on the face of the complaint, then it may not

afford the basis for a dismissal of the complaint under Rule

12(b)(6).”) (citation omitted).

a. Bivens Action

First, plaintiff proposes to name defendant Sceusa in his

individual and official capacities and assert a claim against him

for cruel and unusual punishment under the Eighth Amendment.

Proposed Amended Compl. ¶¶ 41-45. There is no statutory basis to

bring a damages action against federal employees for violation of

the Constitution. Ziglar v. Abassi, 137 S. Ct. 1843 (2017).

However, The Supreme Court created an implied cause of action in

Bivens when federal officers violated a person’s Fourth Amendment

rights. Bivens v. Six Unknown Named Agents of the Federal Bureau

of Narcotics, 403 U.S. 388 (1971). The Court extended the Bivens

remedy twice more in: Davis v. Passman, 442 U.S. 228 (1979)

(holding administrative assistant fired by Congressman had a

Bivens remedy for her Fifth Amendment gender discrimination

claim), and Carlson v. Green, 446 U.S. 14 (1980) (holding that

prisoner’s estate had a Bivens remedy against federal jailers for

failure to treat his asthma under the Eighth Amendment). As is

relevant in the present case, the Supreme Court has also

specifically recognized an implied cause of action for failure to

protect claims under the Eighth Amendment’s deliberate

indifference standard. Bistrian v. Levi, 912 F.3d 79, 90–91 (3d

Cir. 2018).

i. Official Capacity Claim

An action against government officials in their official

capacities constitutes an action against the United States, and

Bivens claims against the United States are barred by sovereign

immunity, absent an explicit waiver. Lewal v. Ali, 289 F. App’x

515, 516 (3d Cir. 2008) (noting Bivens action can be maintained

against a defendant in his or her individual capacity only)); see

also Scott v. Doe, No. CV 18-17045, 2020 WL 1041354, at *3 (D.N.J.

Mar. 4, 2020) (dismissing plaintiff’s Eighth Amendment claim for

indifference to serious medical need against FCI Fort Dix doctor

in his official capacity based on sovereign immunity). Insofar as

the Proposed Amended Complaint asserts a Bivens claim against

defendant Sceusa in his official capacity, this would be futile.

However, the Proposed Amended Complaint as drafted does not

explicitly make such allegation and the Court will not construe it

as such for the purpose of this Motion.

ii. Individual Capacity Claim

The Eighth Amendment proscription against cruel and unusual

punishment requires that inmates are provided with adequate

medical care. Coley v. Sulayman, No. CIVA 06-3762NLH, 2007 WL

2306726, at *2 (D.N.J. Aug. 7, 2007), aff’d sub nom. Coley v.

Iwaugwu, 303 F. App’x 109 (3d Cir. 2008). To establish a violation

of plaintiff’s Eighth Amendment right to adequate medical care,

plaintiff must allege facts that show (1) a serious medical need,

and (2) acts or omissions by prison officials that indicated

deliberate indifference to that need. Estelle v. Gamble, 429 U.S.

97, 103–04 (1976); Natale v. Camden County Corr. Facility, 318

F.3d 575, 582 (3d Cir.2003). Additionally, in order to bring a

Bivens action against federal officials, a prisoner must exhaust

available remedies before filing suit. Ahmed v. Dragovich, 297

F.3d 201, 209 n. 9 (3d Cir. 2002). Here, the Proposed Amended

Complaint alleges facts that (1) defendant Sceusa was a federal

agent acting under color of federal law [Proposed Amended Compl.

¶ 3]; (2) plaintiff’s gender dysphoria constitutes a serious

medical need [Id. at ¶ 42]; (3) defendant Sceusas’s management of

plaintiff’s hormone treatment demonstrates indifference to that

need [Id. at ¶¶ 43-45]; and, (4) available administrative remedies

were exhausted [Id. at ¶ 31]. Construing the complaint liberally

and giving plaintiff the benefit of all reasonable inferences, the

proposed claim against defendant Sceusa alleging failure to

protect in violation of the Eighth Amendment is not “clearly

futile” under Rule 15. Harrison Beverage Co., 133 F.R.D. at 468.

b. Affordable Care Act Claim

Next, plaintiff proposes to assert a claim against defendant

Sceusa for discrimination under the ACA. Proposed Amended Compl.

¶¶ 46-50. Consistent with Judge Kugler’s August 6, 2020 decision,

the Court will permit amendment of plaintiff’s ACA claim at this

early stage in keeping with the liberal standard under Rule 15.

See Doc. Nos. 4, 5; South, 2020 WL 4530050, at *3 (allowing

plaintiff’s ACA claims to proceed out of an abundance of caution,

and due to the scarcity of case law on the subject in the Third

Circuit) (citing Lewis v. Ives, No. 18-184, 2020 WL 2761024, at

*10 (D. Or. Feb. 12, 2020), report and recommendation adopted,

2020 WL 2747397 (May 27, 2020).

c. Rehabilitation Act Claim

Finally, plaintiff proposes to assert a claim against the BOP

for violation of the RA. Proposed Amended Compl. ¶¶ 51-53. In

consideration of Judge Kugler’s August 6, 2020 decision allowing

plaintiff’s RA claim against the BOP to proceed and directing the

filing of a counseled amended complaint to that end, the Court

will permit amendment of plaintiff’s RA claim.

Conclusion

For the reasons stated above, IT IS HEREBY ORDERED this 12th

day of October, 2021 that plaintiff’s Motion seeking leave to file

an amended complaint [Doc. No. 17] is GRANTED; and it is further

ORDERED that plaintiff shall file the amended complaint by

October 26, 2021; and it is further

ORDERED that plaintiff’s request for relief from the redline

requirement of L. Civ. R. 15.1(a)(2) is GRANTED in the interests

of justice and judicial economy.

s/ Matthew J. Skahill

MATTHEW J. SKAHILL

United States Magistrate Judge

At: Camden, New Jersey