Tovar v. Marshall

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

BRYAN LEE TOVAR

aka AMAYA MARIE TOVAR,

Plaintiff,

v. Case No. 2:23-cv-00397

WILLIAM K. MARSHALL, III, .,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court are the following motions: Defendants Elaine J.

Gedman and Wexford Health Sources, Inc.’s Motion to Dismiss [ECF No. 19];

Defendant William K. Marshall, III’s Motion to Dismiss [ECF No. 22]; Plaintiff’s

Motion for Appointment of Counsel [ECF No. 25]; Plaintiff’s Motion to Compel

Defendants to Produce Documents [ECF No. 26]; and Defendant Marshall’s second

Motion to Dismiss [ECF No. 42], in which Gedman and Wexford join [ECF No. 45].

By Standing Order, this matter is referred to the Honorable Dwane L. Tinsley, United

States Magistrate Judge, for submission of proposed findings and a recommendation

for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). For reasons appearing to the

Court, it is hereby ORDERED that the referral of this matter to the Magistrate Judge

is WITHDRAWN, and the undersigned will proceed to rule on the pending motions.

I. Plaintiff’s Allegations and Pending Motions.

While incarcerated as a sentenced West Virginia prisoner at the St. Marys

Correctional Center (“SMCC”), Plaintiff filed the instant complaint under 42 U.S.C.

§ 1983 against West Virginia Division of Corrections and Rehabilitation (“WVDCR”)

Commissioner William K. Marshall, III (“Marshall”), Wexford Health Sources, Inc.

(“Wexford”), and Wexford’s Executive Vice President, Elaine J. Gedman (“Gedman”)

(collectively “the Wexford Defendants”). The complaint challenges the lawfulness of

WVDCR Policy Directive 411.00 (“P.D. 411.00”) concerning treatment or

accommodations for transgender inmates.

Plaintiff alleges that she is a transgender female, suffering from “gender

dysphoria” and/or “gender identity disorder” (“GID”), who has been denied gender-

reassignment surgery1 and other gender-affirming care under P.D. 411.00, which

requires “real-life experience” (outside of the correctional setting) prior to approval

for gender-reassignment surgery. [ECF No. 2 at 1-2, 4]. Plaintiff contends that this

requirement poses an unconstitutional bar on surgical intervention for treatment of

gender dysphoria. She further contends that Defendants have “consciously

disregarded [her] serious medical need for effective treatment for gender dysphoria”

and “caused a distinct disability” through “severe mental anguish” because she will

“never look as she feels she is, a female.” [ at 2]. Plaintiff further claims that she

1 Plaintiff’s complaint interchangeably uses the terms “gender reassignment surgery” and “sex

reassignment surgery.” Because P.D. 411.00 uses “gender-reassignment surgery,” the Court will use that

terminology throughout this opinion. [See P.D. 411.00, Gender Nonconforming Inmates/Residents, ECF

No. 2-1 at 27, (Ex. 8)].

has “self-medicated” by “cutting her arms because the physical pain helped ease her

‘emotional torment and anguish.’” [ at 4].

Plaintiff is receiving hormone replacement therapy and is permitted to wear

feminine clothing, hairstyles, and makeup. [ at 3-4]. However, she further claims

that, although she was evaluated in 2021 for gender-reassignment surgery, breast

augmentation, hair implants, and hair removal by electrolysis, the same was denied

by Wexford pursuant to P.D. 411.00. [ at 4]. Plaintiff alleges that P.D. 411.00’s

restrictions violate the Eighth Amendment’s Cruel and Unusual Punishment Clause,

the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and

the Americans with Disabilities Act (‘ADA”), 42 U.S.C. 12101 . [ at 1-2]. The

complaint seeks declaratory and injunctive relief requiring revision of P.D. 411.00

and Plaintiff’s referral for evaluation for gender-reassignment surgery, breast

augmentation, hair removal by electrolysis, and voice therapy. [ at 12-13].

Plaintiff also makes a passing request for “punitive damages” against each defendant,

but fails to make any claim for compensatory damages, which is a prerequisite for

punitive damages. [ at 13].

On October 4, 2023, the Wexford Defendants filed a Motion to Dismiss [ECF

No. 19] and Memorandum of Law [ECF No. 20] asserting that Plaintiff’s complaint

fails to state a claim upon which relief can be granted against them. On October 16,

2023, Defendant Marshall also filed a Motion to Dismiss [ECF No. 22] and

Memorandum of Law [ECF No. 23] asserting that Plaintiff’s complaint fails to state

a plausible claim for relief against him. Plaintiff responded in opposition to both

motions [ECF Nos. 28, 29], and Defendants filed reply briefs [ECF Nos. 29, 35].

Thereafter, Plaintiff filed an unauthorized sur-reply to Marshall’s motion to dismiss

[ECF No. 36]. Additionally, Plaintiff filed a Motion for Appointment of Counsel [ECF

No. 25] and a Motion to Compel Defendants to Produce Documents [ECF No. 26],

seeking production of her medical and mental health records, her evaluations for

gender dysphoria, and any policies or regulations pertaining to treatment of gender

dysphoria.

On May 23, 2024, Defendant Marshall filed a second Motion to Dismiss [ECF

No. 42] and Memorandum of Law [ECF No. 43] asserting that Plaintiff’s claims for

relief had been mooted by her release on parole. Thus, Marshall seeks dismissal of

the complaint under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of

subject matter jurisdiction. On May 24, 2024, the Wexford Defendants joined in

Marshall’s second motion to dismiss [ECF No. 45].

On May 30, 2024, Plaintiff responded to the second motion to dismiss arguing

that her claims for declaratory and injunctive relief should continue because

Defendants “will only violate another person’s constitutional rights . . . .” [ECF No.

46 a 2]. Plaintiff also attempts to amend her complaint to request compensatory

damages in the amount of $85,000, which was not included in the initial complaint.

[ at 2-3].

On June 7, 2024, Marshall filed a reply brief, in which the Wexford Defendants

also joined, again asserting that Plaintiff’s claims for declaratory and injunctive relief

are moot and further arguing that Plaintiff cannot amend her complaint through

briefing in opposition to a motion to dismiss. Defendant Marshall further asserts

that, if the Court were to find that Plaintiff’s initial complaint appropriately sought

monetary damages and were to accept her amended claim for damages, any monetary

damages against Marshall in his official capacity are barred by the Eleventh

Amendment and he is entitled to qualified immunity in his individual capacity. [ECF

No. 47]. These matters are ripe for resolution.

II. Standard of Review

The power of the federal courts to adjudicate claims turns on the existence of

a case or controversy. U.S. Const., art. III, § 2; , 547

U.S. 332, 352 (2006). For this Court to exercise subject matter jurisdiction over an

action, “the conflict between the litigants must present a ‘case or controversy’ both at

the time the lawsuit is filed and at the time it is decided.” , 719 F.2d 689,

693 (4th Cir. 1983) (emphasis in original). “When a case or controversy ceases to exist

because the issue is no longer live or a party ‘lack[s] a legally cognizable interest in

the outcome[,]’ preventing the court from granting effective relief, the claim becomes

moot, and the court lacks the constitutional authority to adjudicate the issue.”

, 2011 WL 6024499 *4 (E.D. Va., Dec. 2, 2011) (citing

, 395 U.S. 486, 496 (1969) and , 404 U.S.

244, 246 (1971)); , 615 F. App’x 157, 158 (4th Cir.

2015) (dismissing appeal challenging term of imprisonment as moot based upon

appellant’s release from prison); 545 F.3d 280, 284-85 (4th

Cir. 2008) (noting that appellant's release from prison during pendency of appeal

mooted challenge to revocation of supervised release and imposition of prison

sentence); 290 F.3d 191, 197 (4th Cir. 2002) (“[W]hether

we are presented with a live case or controversy is a question we may raise

since mootness goes to the heart of the Article III jurisdiction of the courts.”

Rule 12(b)(1) of the Federal Rules of Civil Procedure, which is cited by

Defendants herein, governs dismissal for lack of subject matter jurisdiction and a

moot complaint is properly considered for dismissal under Rule 12(b)(1). Fed. R. Civ.

P. 12(b)(1); , DKC-10-2503, 2011 WL 3236098, at

*1 (D. Md. July 27, 2011) (“[M]ootness goes to the ‘heart’ of the court's Article III

jurisdiction . . . .”); , 387 F. Supp. 2d 16, 17 (D.D.C. 2005) (“As

mootness creates a jurisdictional defect, respondents’ motion will be treated as a

motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1).”). Similarly, Rule 12(h)(3) of

the Federal Rules of Civil Procedure permits a district court to dismiss a civil action

at any time if it appears that the court lacks subject matter jurisdiction. Fed. R. Civ.

P. 12(h)(3); , 361 F. Supp. 398 (S.D. W. Va. 1973),

, 503 F.2d 512 (4th Cir. 1974);

, 210 F.3d 389 (10th Cir. 2000) (permitting

dismissal for lack of subject matter jurisdiction under Rule 12(h)(3) of the Federal

Rules of Civil Procedure); ., No. 2:20-cv-00388, 2020 WL 5502305, at

*1 (S.D.W. Va. Sept. 11, 2020) ( dismissal under Rule 12(h)(3) for lack of

subject matter jurisdiction).

As noted in , well-established Fourth Circuit precedent has recognized

that “the transfer or release of an inmate from the facility where he suffered the

challenged conditions ‘moots his claims for injunctive and declaratory relief’

pertaining to his imprisonment.” 2011 WL 6024499 at *4;

, 569 F.3d 182, 186 (4th Cir. 2009) (“as a general rule, a prisoner’s transfer or

release from a particular prison moots his claims for injunctive and declaratory relief

with respect to his incarceration there.”).

III. Discussion

As noted by Defendant Marshall’s second motion to dismiss, Plaintiff was

approved for release on parole on March 13, 2024, and was released from SMCC on

April 14, 2024. [ECF No. 43, Ex. A]. Plaintiff now resides in Milton, West Virginia,

and is no longer incarcerated at a WVDCR facility or subject to the restrictions of

P.D. 411.00. [ECF No. 39]. Consequently, as asserted by Defendants, the declaratory

and injunctive relief Plaintiff seeks “would have no practical impact on Plaintiff” and

she “no longer has an interest in the constitutionality of Policy Directive 411.00.”

[ECF No. 43 at 4]. Therefore, these claims are moot.

However, an exception to the mootness doctrine exists when the claim is

“capable of repetition, yet evading review.” , 219

U.S. 498, 515 (1911). As noted by Defendants, this exception applies when “(1) the

challenged action is in its duration too short to be fully litigated prior to cessation or

expiration, and (2) there is a reasonable expectation that the same complaining party

will be subject to the same action again.” , 523 U.S. 1, 17 (1998)

(internal quotation marks and brackets omitted). [ECF No. 43 at 4-5]. Nonetheless,

“[m]ere conjecture that the plaintiff may return to a prison facility and again face the

alleged wrong is not sufficient to meet the mootness exception.” ,

No. 3:16-cv-02048, 2016 WL 3211539, *2 (S.D.W. Va. 2016) (citing ,

83 F.3d 807, 811 (7th Cir. 1996)). [ ] Defendants assert that “there is no evidence

that indicates that Plaintiff will ever be confined in a WVDCR facility or be subject

to Policy Directive 411.00 again” and, therefore, “Plaintiff’s claims remain moot and

must be dismissed.” [ at 5].

The undersigned agrees that the “capable of repetition” mootness exception

does not apply here. Whether Plaintiff will ever again be confined in a WVDCR

facility or again be subject to Policy Directive 411.00 is pure conjecture that will not

confer subject matter jurisdiction upon this Court for further consideration of

Plaintiff’s claims for declaratory and injunctive relief. Nor is Plaintiff’s mere

speculation that Defendants will violate someone else’s constitutional rights

persuasive or sufficient to save Plaintiff’s claims for declaratory and injunctive relief.

Moreover, as aptly noted by Defendants’ reply to their second motion to

dismiss, Plaintiff’s initial complaint did not seek compensatory damages and she may

not amend her complaint through a response to a motion to dismiss. [ECF No. 47 at

2-3]. While Plaintiff’s complaint did make a request for “punitive” damages, such a

claim is derivative of a claim for compensatory damages, which is absent here.

, 413 S.E.2d 897, 908 (W. Va. 1991) (in West

Virginia, punitive damages may not be awarded without a finding of compensatory

damages and must bear a reasonable relationship to actual damages);

., 947 F.2d 95, 100 (4th Cir. 1991) (“Punitive damages may be

awarded only if actual damages are awarded.”) (citing , 139

S.E.2d 908, 910 (S.C. 1965)); , 593 F. Supp.3d 1086,

1103 (D. Colo. 2022) (a claim for punitive or exemplary damages is auxiliary to a

claim for actual damages); , 483 F. Supp. 3d 435, 457 (E.D.

Ky. 2020) (a claim for punitive damages is tied to claims for compensatory damages

under state and federal law; thus, “without a factual allegation of actual

compensatory damages, punitive recoveries cannot be sustained.”) (quoting

, 598 S.W.2d 474, 476 (Ky. Ct. App. 1980) (other citations omitted)).

Consequently, the Court FINDS that Plaintiff’s claim for punitive damages was

inappropriately pled and that there is no proper claim for monetary damages that

would sustain this civil action considering Plaintiff’s release from custody. Likewise,

Plaintiff’s motions for appointment of counsel and for production of various

documents are mooted by her release from custody.

IV. Conclusion

For the reasons stated herein, it is hereby ORDERED that Defendant

Marshall’s second Motion to Dismiss [ECF Nos. 42], in which the Wexford Defendants

join [ECF No. 45], is GRANTED and this civil action is DISMISSED AS MOOT

pursuant to Rules 12(b)(1) and 12(h)(3) of the Federal Rules of Civil Procedure. It is

further ORDERED that Defendants’ first Motions to Dismiss [ECF Nos. 19 and 22]

and Plaintiff's Motions for Appointment of Counsel and for Production of Documents

[ECF Nos. 25 and 26] are DENIED AS MOOT.

The Court DIRECTS the Clerk to send a copy of this Memorandum Opinion

and Order to counsel of record and any unrepresented party.

ENTER: July 25, 2024

G CLG

pe STATES D{STRICT JUDGE

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