Tovar v. Persily

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

AMAYA MARIE TOVAR,

aka BRYAN LEE TOVAR

Plaintiff,

v. Case No. 2:23-cv-00067

CYNTHIA PERSILY, Cabinet Secretary,

West Virginia Department of Human Services, .,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court are the following motions: a Motion to Dismiss filed

by the West Virginia Department of Health and Human Resources, Sherry A.

Young, and Matthew Christiansen (ECF No. 13)1; Plaintiff’s Petition to Amend

Birth-Assigned Sex Designation and Birth-Assigned Name on Birth Certificates and

Social Security Card (ECF No. 15); a Motion to Dismiss filed by Phylis Smith (ECF

No. 25); and a Motion to Dismiss filed by Martin J. O’Malley (ECF No. 29). 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

1 During the pendency of this civil action, the West Virginia Department of Health and Human Resources

has undergone a reorganization into three separate departments. As relevant here, the department with

oversight of the Vital Registration Office, the repository of official birth records, is the Department of

Human Services, which is presently overseen by Cabinet Secretary Cynthia Persily, who was substituted as

a defendant in place of Sherry A. Young pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

Accordingly, this pending motion to dismiss will be treated as being filed by the West Virginia

Department of Human Services (“DHS”), Cynthia Persily, and Matthew Christiansen, as State Health

Officer and Commissioner of the Bureau for Public Health (collectively “the DHS Defendants”). The

Court will hereinafter refer to this motion as “the DHS Defendants’ motion to dismiss.” Similarly, Martin

J. O’Malley, the current Commissioner of the Social Security Administration, was substituted for the

previous Commissioner initially named in Plaintiff’s complaint prior to the filing of O’Malley’s pending

motion to dismiss.

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Judge is WITHDRAWN, and I will proceed to rule on the pending motions.

I. Plaintiff’s Allegations and Pending Motions.

On January 27, 2023, Plaintiff, who identifies as a transgender female

allegedly suffering from “gender dysphoria” and/or “gender identity disorder

(“GID”), who is also a convicted felon required to register as a sex offender, filed the

instant Verified Complaint under 42 U.S.C. § 1983 seeking a declaration that the

State of West Virginia’s name change statutes violate her rights under the United

States Constitution, the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101

., and the Rehabilitation Act, 29 U.S.C. § 701 . Plaintiff also seeks

injunctive relief in the form of a court order directing the defendants to change the

name and sex designation on Plaintiff’s birth certificate and social security

documentation. Specifically, Plaintiff alleges that it is in her best interest that her

assigned sex and name be changed on these documents “to match her lived female

gender identity appearance” and that these changes are “an essential part of the

standard medical treatments for Plaintiff’s gender dysphoria as recognized by the

national and international medical and psychiatric communities.” [ECF No. 1 at 5].

As addressed in the complaint and the defendants’ motions, under West

Virginia law, a name change may only be granted through a petition for a name

change filed in either the circuit or family court of the county in which the

petitioner resides (and has resided for more than one year), or for a non-resident of

the county, where the petitioner was born, married, and resided for at least 15

years. W. Va. Code § 48-25-101, . However, while these state statutes

governing change of name do not specifically exclude name changes for transgender

persons, they prohibit a name change for anyone convicted of a felony, or anyone

required to register as a sex offender, during the required period of incarceration or

registration, or for a particular period after release from incarceration or parole for

certain criminal offenses. W. Va. Code §§ 48-25-101(a)(5) and (8) and 48-25-

103(b), (c), (d), and (e). Plaintiff’s complaint challenges this prohibition stating:

Amending the birth-assigned name and sex as listed on her birth

certificates and social security card will not undermine the state’s

interest [in] accurately identifying the Plaintiff, due to the fact that

when Plaintiff registers with the W. Va. State Police as a sex offender

upon her release, she will have to provide her full name, including any

aliases, nicknames, or other names used by the Plaintiff at the time of

registering. W. Va. Code § 15-12-2(d)(1).

[ECF No. 1 at 9]. In pertinent part, the complaint further claims that:

[T]he circuit courts of the State of West Virginia are enforcing this law,

which clearly is denying the Plaintiff equal protection of the laws, as

well as depriving her of life, liberty, and property without due process

of law, by not allowing her to petition the circuit court of the county in

which she was born/resides/resided for a sex and name change on her

W. Va. birth certificates and social security card to match her lived

female gender expression of identity.

[ at 11].

Without further specific facts, Plaintiff alleges that she has suffered a

“concrete injury” through the decision to deny her application for a sex and name

change on her birth certificate and social security card under these state statutes.

[ at 13]. Plaintiff’s response brief clarifies that, on July 31, 2023 (seven months

after she filed the instant complaint), she filed a petition for a name and gender

marker change in the Family Court of Cabell County (her county of birth), which

was denied on August 23, 2023. [ECF No. 21 at 1; ECF No. 21-1 at 1-3]. The order

denying Plaintiff’s petition indicates that it was denied for failure to comply with W.

Va. Code § 48-25-101 because Plaintiff “is currently incarcerated and has multiple

felony convictions which require him to register as a sex offender upon his release

from incarceration.” [ECF No. 21-1 at 2]. However, Plaintiff’s complaint does not

allege any facts concerning her attempts to change the sex designation on her birth

certificate or social security card, which, as addressed in further detail below, is

subject to different administrative procedures unrelated to the name change

petition process.

Nonetheless, Plaintiff’s complaint alleges that “[t]he deprivation of the right

to petition a circuit court for a sex and name change on Plaintiff’s birth certificates

and social security card to reflect her lived female gender expression of identity is

precisely the sort of irreparable injury that satisfies the injury in fact requirement.”

[ECF No. 1 at 11]. Thus, Plaintiff’s complaint seeks a court order requiring the

DHS Defendants, Phylis Smith, the former Clerk of Cabell County, and Martin J.

O’Malley, the current Commissioner of the Social Security Administration, to

amend Plaintiff’s birth certificate and social security documents to modify her male

sex to female and to change her name from “Bryan Lee Tovar” to “Amaya Marie

Tovar.”2

On September 8, 2023, the DHS Defendants filed a Motion to Dismiss

asserting that, for the purposes of this civil action, they are not “state actors” under

§ 1983 because they do not have the legal authority under state law to effect the

changes that Plaintiff seeks, which may only be granted by the appropriate circuit

or family court as addressed above. [ECF No. 13 at 3-4]. On a related note, the

DHS Defendants further assert that Plaintiff lacks standing to sue them because

she has not suffered an injury that is “fairly traceable” to their actions. [ at 4-8].

On November 22, 2023, Plaintiff filed a “reply” in opposition to the DHS

Defendants’ motion (hereinafter “Plaintiff’s response”) citing to various decisions

which she asserts demonstrate that blanket bans on name changes based upon

transgender status and criminal history have been held unconstitutional. [ at 2-

3]. Plaintiff emphasizes that the failure to allow these proposed changes to her

identity documents is interfering with her medical and mental health treatment

and places her at “a substantial risk for serious irreparable psychological harm

while serving no legitimate purpose.” [ at 3]. She further speculates that she is

“a high risk of being discriminated against” and suffering “hate violence” without

the requested changes to her identity documents. [ ] She contends that she is

seeking the requested relief for no purpose other than to “promote her health and

2 In her subsequently filed “Petition to Amend Birth-Assigned Sex Designation and Birth Assigned

Name,” Plaintiff appears to have again modified her proposed name change to “Amaya Marie Shultz.”

(ECF No. 15, passim).

safety.” [ at 3-4]. Plaintiff’s response, however, wholly fails to address the DHS

Defendants’ standing arguments.

On December 6, 2023, Defendant Smith filed a Motion to Dismiss asserting

that she is no longer the Cabell County Clerk, and, at any rate, her office has no

responsibility for changing birth certificates; rather, the office is merely the keeper

of official county records in accordance with all laws and regulations. [ECF No. 25

at 1]. Smith maintains that the DHS Office of Vital Statistics3 is responsible for the

actual data. [ ] Thus, Smith asserts that Plaintiff’s requested relief is “not within

the functioning of the Cabell County Clerk and/or is contrary to West Virginia Law.”

[ ] On February 5, 2024, Plaintiff responded to Smith’s motion asserting, without

any factual detail, that Smith denied Plaintiff’s petition for a name change and sex

designation based on a discriminatory and unconstitutional state statute. [ECF No.

34 at 1-2]. Plaintiff’s response otherwise repeats her assertions that the failure to

allow these requested changes to her identity documents causes her psychological

harm and mental anguish. [ ]

Finally, on January 8, 2024, Defendant O’Malley filed a Motion to Dismiss

[ECF No. 29] and Memorandum of Law [ECF No. 30] asserting that Plaintiff’s

complaint fails to state a plausible claim for relief against him or the Social Security

Administration (“SSA”) because Plaintiff’s claims are barred by sovereign immunity

or do not apply to the federal government, and further asserting that Plaintiff has

not exhausted the required administrative remedies under federal law. On

3 The proper name of this office appears to be the “Vital Registration Office,” a branch within the

“West Virginia Health Statistics Center,” which is part of the “Bureau of Public Health.”

February 5, 2024, Plaintiff responded in opposition to O’Malley’s motion to dismiss,

making a blanket assertion that she has a “legal right to have her name and sex

designation changed on her social security card” and the failure to do so is causing

her “mental anguish” and “psychological torture.” [ECF No. 35 at 1-2]. Plaintiff

further claims that she has written letters to the SSA to try to get the required

forms to apply for these changes, but the SSA never responded. Thus, she

summarily asserts that Defendants are “guilty of violating Plaintiff Tovar’s

constitutional rights [and are] also subjecting her to cruel and unusual

punishment.” [ at 2]. On February 9, 2024, O’Malley filed a reply brief repeating

his argument that Plaintiff failed to exhaust her administrative remedies and

asserting that she did not specifically contest any of his other grounds for dismissal.

[ECF No. 36]. These matters are ripe for resolution and these arguments will be

further addressed as necessary below.

II. Standard of Review

Defendants’ motions are filed pursuant to Rules 12(b)(1) and 12(b)(6) of the

Federal Rules of Civil Procedure. A motion filed under Rule 12(b)(6) tests the legal

sufficiency of a complaint or pleading. , 521 F.3d 298, 302

(4th Cir. 2008). A pleading must contain a “short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This standard

“does not require ‘detailed factual allegations,’ but it demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” ,

556 U.S. 662, 678 (2009) (quoting , 550 U.S. 544, 555

(2007)). When “faced with a Rule 12(b)(6) motion to dismiss . . . courts must . . .

accept all factual allegations in the complaint as true.”

, 551 U.S. 308, 322 (2007).

To survive a motion to dismiss, “a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

, 556 U.S. at 678 (quoting , 550 U.S. at 570). To achieve facial

plausibility, the plaintiff must plead facts allowing the court to draw the reasonable

inference that the defendant is liable, moving the claim beyond the realm of mere

possibility. Mere “labels and conclusions” or “formulaic recitation[s] of the

elements of a cause of action” are insufficient. , 550 U.S. at 555.

Rule 12(b)(1) of the Federal Rules of Civil Procedure, on the other hand,

governs dismissal for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1);

, 697 F.2d 1213, 1219 (4th Cir. 1982). A Rule 12(b)(1) motion can be

presented in two ways. First, a defendant may contend that a pleading “simply fails

to allege facts upon which subject matter jurisdiction can be based.” , 697

F.2d at 1219. The court then assumes that the allegations in the complaint are true

and affords the plaintiff the same procedural protection she would receive under

Rule 12(b)(6). Second, a defendant may raise a factual attack against the

complaint, alleging that the jurisdictional allegations of the complaint are not true.

Then, the court “is to regard the pleadings’ allegations as mere evidence on the

issue, and may consider evidence outside the pleadings without converting the

proceeding to one for summary judgment.”

, 945 F.2d 765, 768 (4th Cir. 1991) (citing , 697 F.2d

at 1219). The burden of proving that a court has subject matter jurisdiction rests

with the plaintiff, as the party asserting it. , 905 F. Supp.2d

712, 719 (W.D.N.C. 2012). However, the court should grant dismissal “only if the

material jurisdictional facts are not in dispute and the moving party is entitled to

prevail as a matter of law.”

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).

III. Discussion

A. Defendants are not state actors for the purpose of this § 1983 action

and, therefore, Plaintiff lacks standing to sue these Defendants for a

name change.

Plaintiff filed this civil action under 42 U.S.C. § 1983. “To state a claim

under § 1983, a plaintiff must allege the violation of a right secured by the

Constitution and laws of the United States and must show that the alleged

deprivation was committed by a person acting under color of state law.”

, 487 U.S. 42, 47 (1988). As noted by the DHS Defendants, “[g]enerally, a

public employee acts under color of state law while acting in his official capacity or

while exercising his responsibilities pursuant to state law.” , 451

U.S. 527, 535-36 (1981) (emphasis added); , 454 U.S.

312, 317-18 (1981) (citing , 313 U.S. 299, 326 (1941)). [ECF

No. 13 at 3-4]. The DHS Defendants assert that, under state law, they “are not

clothed with the authority to [grant] or deny Plaintiff’s petition for a name change[;]

nor is it their responsibility under state law to decide upon that request for Plaintiff

or any other West Virginia resident, regardless of sex, gender, or criminal history.”

[ at 4]. Thus, “[i]n their official capacity, Defendants cannot effectuate this

change for Plaintiff . . . [as they] are not tasked with implementing, enforcing, or

interpreting this state law but are only able to respond to lawful orders by a West

Virginia circuit or family court.” [ ] Consequently, to the extent that Plaintiff has

alleged that the DHS Defendants have caused her an injury which this court may

remedy, Plaintiff lacks standing to bring her claims.

“Standing to sue is a doctrine rooted in the traditional understanding of a

case or controversy.” , 578 U.S. 330, 338 (2016);

No. 2:19-cv-00878, 2024 WL 2139394, at *5 (May 13, 2024).

Thus, the standing doctrine “implicates the court’s [limited] subject matter

jurisdiction” under Article III of the United States Constitution.

, 912 F.3d 720, 726 (4th Cir. 2019) (quoting

, 401 F.3d 230, 234 (4th Cir. 2005)). As noted by the DHS

Defendants, “[t]he standing doctrine ensures ‘that federal courts do not exceed their

authority as it has been traditionally understood.” , 578 U.S. at 338 (citing

, 521 U.S. 811, 820 (1997)). [ECF No. 13 at 5].

In assessing standing, the court accepts as true the allegations in the

pleading that are supported by adequate factual matter to render them plausible on

their face. , 848 F.3d 262, 270 (4th Cir. 2017) (citing

, 556 U.S. 662, 678 (2009)). As noted above, Plaintiff bears the burden of

proving that subject matter jurisdiction exists and if such jurisdiction is lacking, the

claim must be dismissed. , 166 F.3d 642, 647 (4th Cir.

1999); , 945 F.2d at 768;

, 546 U.S.500, 506 (2006). [ECF No. 13 at 5-6].

Article III standing requires a plaintiff to present “an injury that is concrete,

particularized, and actual or imminent; fairly traceable to the defendant’s

challenged behavior; and likely to be redressed by a favorable ruling.”

, 554 U.S. 724, 734 (2008);

, 528 U.S. 167, 180-81 (2000); , 504

U.S. 555, 560-61 (1992). “Each of the three standing requirements share a common

purpose: ‘to ensure that the judiciary . . . is the appropriate forum in which to

address a plaintiff’s complaint.’” , 2024 WL 2139394, at *5 (quoting

, 204 F.3d 149, 154 (4th

Cir. 2000)).

The injury-in-fact element is satisfied when a plaintiff shows “an invasion of

a legally protected interest which is: (a) concrete and particularized; and (b) actual

or imminent, not conjectural or hypothetical.”

, 124 F.Supp.3d 642, 651 (E.D.N.C. 2015). Furthermore, an injury is

“fairly traceable to the challenged action of the defendant” when there is a “causal

connection between the injury and the conduct complained of.” , 504 U.S. at

560. For a claim to be redressable, “[a] plaintiff must show that the court has the

power to grant the plaintiff’s requested relief, and that such relief would redress the

plaintiff’s injury.” , 964 F.3d 252, 259 (4th Cir. 2020),

, 141 S. Ct. 1388, 209 L. Ed. 2d 129 (2021). “An injury is

redressable if it is ‘likely, as opposed to merely speculative, that the injury will be

redressed by a favorable decision.’” , 713 F.3d 745,

755 (4th Cir. 2013) (quoting , 528 U.S. at 561). [ECF No. 13 at

6]. Using these parameters, I will address Plaintiff’s standing to bring her claims

against each of the defendants.

1. The DHS Defendants

The DHS Defendants assert that Plaintiff does not have standing to sue them

concerning her name change prohibition, as her “alleged injury under that claim is

not attributable to [them] since [they] are not vested with the authority to approve

or deny a petition to change Plaintiff’s name.” [ECF No. 13 at 7-8]. They contend

that Plaintiff’s claim “fails in respect to the injury in fact and traceability

requirements of the standing doctrine” and, therefore, “that claim is also not

redressable by this Court[,]” even to the extent that Plaintiff seeks declaratory relief

concerning the constitutionality of the state statute.

, 995 F.2d 510, 513 (4th Cir.

1993) (“By itself, a declaratory judgment cannot be the redress that satisfies the

third standing prong.”) [ at 8].

The DHS Defendants further assert that Plaintiff also lacks standing to sue

them concerning the change of her biological sex designation on her birth certificate

because “there is no actual or concrete injury that was caused by the conduct of

[those] Defendants.” [ at 7]. Their brief asserts:

[T]he West Virginia Health Statistics Center will change the sex listed

on an individual’s birth certificate upon the submission of a form which

includes a physician’s attestation that the individual’s sex designation

should be changed. The form for Plaintiff to do this is found on the

West Virginia Department of Health and Human Resources’ Health

Statistics Center web page under “Sex Designation Form” [footnote

with link to website omitted]. The Defendants are not prohibiting

Plaintiff from changing the sex designation on their birth certificate.

To the contrary, Plaintiff has access to the same procedure that anyone

else has who wants to change their sex designation, in line with the

Equal Protection Clause of the 14th Amendment, which requires “all

persons similarly situated should be treated alike.”

, 302 F. Supp.3d 730, 748 (E.D. Va.

2018), citing ,

858 F.3d 1034, 1050 [(7th Cir. 2017)] quoting

, 473 U.S. 432, 439 [ ] 1985).

[ECF No. 13 at 7]. The DHS Defendants further contend that “[s]ince the State of

West Virginia is not preventing Plaintiff from changing the sex designation on

Plaintiff’s birth certificate . . . no actual or concrete injury . . . is traceable to the

conduct or lack thereof by the Defendants. That leaves this Court without any

injury to redress regarding this claim.” [ ] Nothing in Plaintiff’s response

sufficiently overcomes these deficiencies of fact.

I agree that Plaintiff has not established the required elements of standing

for her claims against the DHS Defendants. To the extent that Plaintiff seeks relief

from the DHS Defendants concerning the prohibition for a name change due to

having been convicted of felony offenses and being required to register as a sex

offender, the DHS Defendants have no authority to approve or deny the requisite

petition to change Plaintiff’s name. That authority lies with the circuit or family

courts.4 Thus, any injury in fact that Plaintiff has suffered from the state-law

prohibition to change her name on her birth certificate is not fairly traceable to the

DHS Defendants and is not redressable by this court. e, , 883

F.3d 971, 975-76 (7th Cir. 2018) (a plaintiff suing to enjoin a state statute must

show that the named state official plays some role in enforcing the statute in order

to avoid an Eleventh Amendment bar and, “in order to satisfy the requirements of

causation and redressability, the plaintiff must also establish that his injury is

causally connected to that enforcement and that enjoining the enforcement is likely

to redress his injury. . . .”)

I likewise FIND that Plaintiff has not established an injury in fact concerning

a change to the sex designation on her birth certificate because it appears that she

has not taken the necessary steps to request such a change to her birth certificate.

4 To the extent that Plaintiff has alleged that her petition for a name change was denied by the Family

Court of Cabell County, her remedy, if any, lies in a timely appeal of that decision to the appellate courts of

the State of West Virginia, which are vested with the authority to review the constitutionality of state

statutes under state and federal law.

As noted by the DHS Defendants, the State’s Health Statistics Center will make

such a change upon the filing of the designated form, available on its website, that

must include a physician’s attestation that the individual’s sex designation should

be changed. [ECF No. 13 at 6-7]. Plaintiff’s complaint does not indicate that these

administrative steps were attempted and that such request was denied, and there is

nothing in the record to demonstrate that such steps were taken. Accordingly,

Plaintiff has not established a concrete and particularized injury that is actual or

imminent and, thus, her claim against the DHS Defendants seeking a change to the

sex designation on her birth certificate is not ripe for review.

2. Phylis Smith

Although not specifically pled in her motion to dismiss, I further FIND that

Plaintiff also lacks standing to sue Defendant Smith for her claims for relief

concerning the change of name and sex designation on her birth certificates because

neither Smith (who is no longer the Cabell County Clerk), nor her successor, have

authority to make those prospective changes absent an order granting the name

change by the appropriate state tribunal. Only then does state law require that a

certified copy of the order be filed in the County Clerk’s Office allowing the new

name to be used. W. Va. Code §§ 48-25-104 and 105. Smith’s motion to dismiss

asserts:

[T]he County Clerk’s Office is the official keeper of public records and

ensures that the public records are retained, archived and made

accessible to the public in accordance with all laws and regulations.

The County Clerk does not generate birth certificates. The Office of

Vital Statistics is responsible for the data.

[ECF No. 25 at 1]. Plaintiff’s response incorrectly asserts that Smith “of the Cabell

County Court denied Plaintiff her petition for a name change and sex designation . .

. .” [ECF No. 34 at 1] (emphasis added). However, Smith was the County Clerk,

which is entirely separate from the Circuit or Family Court. Thus, Smith played no

role in the decision denying Plaintiff’s petition for name change. Therefore, Plaintiff

has not established the requisite requirements of an injury in fact that is fairly

traceable to Smith’s conduct and, thus, Plaintiff has no standing to bring her claims

against Defendant Smith. , , 883 F.3d at 979 (“Because Doe

failed to show that the Clerk has any authority in the name-change process, Doe

has failed to show that his injury is fairly traceable to the Clerk's action of

processing petitions.”)

3. Commissioner O’Malley

Plaintiff has also sued Martin J. O’Malley (“O’Malley”) in his official capacity

as the SSA Commissioner, requesting that the Court order the SSA to amend

Plaintiff’s social security records to change her name and sex designation. [ECF No.

1 at 52]. However, it is readily apparent that O’Malley and the SSA play no role in

the approval or denial of a name change under a state law that he has no authority

to enforce. Thus, Plaintiff has no standing to sue O’Malley or the SSA concerning a

challenge to the constitutionality of the state law. Nor may O’Malley or the SSA

change Plaintiff’s name in her social security records without the appropriate state

court order granting the official name change.

To the extent, however, that the SSA has specific administrative procedures

permitting the change of a sex designation in social security records, I will

separately address the viability of that claim in section B herein. Likewise, to the

extent that the DHS has its own separate administrative procedures for a change of

sex designation that is unrelated to the name change issue, I will separately

address that issue as well in section B.

B. Plaintiff has not exhausted available remedies to effectuate a change of

her sex designation in her state or federal records.

Plaintiff also seeks a change of sex designation on her state birth certificate

and her federal social security records in conjunction with the requested name

change. However, the name change procedure is different from that to change the

sex designation. As noted above, according to the DHS Defendants’ motion, “the

West Virginia Health Statistics Center will change the sex listed on an individual’s

birth certificate upon the submission of a form which includes a physician’s

attestation that the individual’s sex designation should be changed” using a form

that is available and accessible to Plaintiff on its website. [ECF No. 13 at 7].

Apparently, however, at least at the time of the briefing of these motions, Plaintiff

had not taken advantage of that administrative process or demonstrated an attempt

to exhaust that administrative remedy, which is available to all West Virginia-born

citizens, regardless of gender status or criminal history. [ ] Consequently,

Plaintiff cannot show a denial of due process or equal protection on this basis and

has failed to demonstrate an injury in fact caused by the DHS Defendants because

the State has not been presented with the opportunity to review a proper request

for a change of sex designation.

Similarly, Defendant O’Malley asserts that Plaintiff has not exhausted the

SSA’s available administrative remedies concerning her requested changes to her

social security records. Specifically, his motion contends that Plaintiff has not

alleged or demonstrated that she submitted a request for change of name or sex

designation, or a new social security card and number, and properly exhausted the

various administrative steps to receive a final determination thereon under the

SSA’s regulations. [ECF No. 30 at 5-6; Forbush Declaration, ECF No. 29,

Ex. A at 2-3]. O’Malley further contends that this failure to exhaust administrative

remedies requires the dismissal of Plaintiff’s claims against him and the SSA for

lack of jurisdiction. , No. 1:17-cv-279-MW-GRJ,

2018 WL 795736, at *2 (N.D. Fla. Jan. 18, 2018) (failure to follow all procedures for

requesting a name change under the social security laws and regulations before

filing a civil action constitutes a failure to exhaust administrative remedies and

requires dismissal of civil action), , 2018 WL

797430 (N.D. Fla. Feb. 8, 2018); s

, No. 18-cv-7028 (BMC) (RLM), 2019 WL 319393 (E.D.N.Y.

Jan. 24, 2019) (plaintiff’s failure to exhaust administrative remedies through

receiving a final decision from the Commissioner of the SSA regarding an

application for a name change prior to filing a civil action required dismissal of the

civil action). [ECF No. 30 at 6].

Beyond summarily contending that she has written to the SSA for forms

(which are apparently available on its website) and received no response, Plaintiff

does not contest O’Malley’s assertion that she has failed to exhaust these available

remedies. Accordingly, it is undisputed that Plaintiff has failed to exhaust the

required and available administrative remedies and, consequently, cannot

demonstrate an injury in fact caused by O’Malley or the SSA stemming from the

failure to change her sex designation in her social security records. Thus, I FIND

that Plaintiff’s claims against O’Malley and the SSA must also be dismissed for lack

of jurisdiction.

C. Other grounds for dismissal of Plaintiff’s claims against O’Malley and

the SSA.

Defendant O’Malley’s motion to dismiss further asserts that Plaintiff’s

constitutional claims are barred by sovereign immunity and that her claims under §

1983 and the ADA fail to state a plausible claim for relief because neither § 1983

nor the ADA apply against the federal government or its officials. [ECF No. 30 at 3-

5, 7-90]. He further contends that Plaintiff’s complaint fails to state a plausible

claim of discrimination under the Rehabilitation Act, 29 U.S.C. § 701

However, because I have determined that subject matter jurisdiction is lacking over

Plaintiff’s claims against each of the named defendants, I FIND it unnecessary and

inappropriate to further consider Defendant O’Malley’s other arguments for

dismissal.

IV. Conclusion

For the reasons stated herein, it is hereby ORDERED that Defendants’

Motions to Dismiss [ECF Nos. 13, 25, and 29] are GRANTED and Plaintiff's

Petition to Amend Birth-Assigned Sex Designation and Birth-Assigned Name on

Birth Certificates and Social Security Card (ECF No. 15) is DENIED. It is further

ORDERED that Plaintiff's Verified Complaint [ECF No. 1] and this civil action are

DISMISSED WITHOUT PREJUDICE.

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

and Order to counsel of record and any unrepresented party.

ENTER: August 1, 2024

ee STATES DISTRICT JUDGE

20