Gilliam v. Department of Public Safety and Correctional Services

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

*

CHELSEA GILLIAM, et al., *

*

Plaintiff, *

* Civ. No. MJM-23-1047

v. *

*

DEPARTMENT OF PUBLIC *

SAFETY AND CORRECTIONAL *

SERVICES, et al., *

*

Defendants. *

*

* * * * * * * * * *

MEMORANDUM OPINION

Plaintiffs Chelsea Gilliam, Kennedy Holland, and Chloe Grey (collectively, “Plaintiffs”)

are three transgender women who were previously or are presently incarcerated in correctional

facilities operated by the Maryland Department of Public Safety and Correctional Services

(“DPSCS”). Plaintiffs filed this civil action against DPSCS and several department officials and

employees (collectively, “DPSCS Defendants”), as well as a healthcare contractor, alleging

violations of various federal constitutional and statutory rights and asserting state tort claims. See

Fourth Amended Complaint, ECF 124 (“4AC”). In sum, Plaintiffs present claims for disability and

sex discrimination, failure to protect, cruel and unusual punishment, denial of medical care,

negligence, and intentional infliction of emotional distress.

This matter is before the Court on DPSCS Defendants’ Motion to Dismiss Fourth Amended

Complaint or, in the Alternative, Motion for Summary Judgment, ECF 132. The motion is fully

briefed and ripe for disposition. No hearing is necessary. See Local Rule 105.6 (D. Md. 2023). For

the reasons set forth below, Defendants’ motion shall be granted in part and denied in part.1

I. FACTUAL BACKGROUND2

Plaintiffs Gilliam, Holland, and Grey are three transgender women who have been

incarcerated in Maryland correctional facilities. 4AC ¶¶ 1, 3–5, 7–11. Gilliam and Holland began

to transition before their incarceration, while Grey began her transition while incarcerated. Id. ¶¶

44–46, 51–53, 62–64. All three Plaintiffs have been diagnosed with gender dysphoria and have

undergone hormone therapy. 4AC ¶¶ 44, 46, 51, 62. Gender Dysphoria is a condition “marked by

a significant incongruence between one’s experienced/expressed gender and the gender assigned

at birth, lasting at least 6 months, and associated with clinically significant distress or impairment

in social, occupational, or other important areas of functioning.” Id. ¶¶ 3–6. Gilliam and Holland

have been released from custody, and Grey remains incarcerated. Id. ¶¶ 9-11.

A. Chelsea Gilliam

Gilliam was a pretrial detainee at Baltimore City Correctional Center (“BCCC”) and

Maryland Reception, Diagnostic, and Classification Center (“MRDCC”) between December 17,

2021, and May 13, 2022, and is now on probation. Id. ¶¶ 7–8. She was diagnosed with gender

dysphoria in approximately 2003, at age 17, and began hormone treatment around that time. Id. ¶¶

44, 46. Gilliam legally changed her name to Chelsea in 2009 and maintains a feminine appearance.

Id. ¶ 45.

1 Defendants have also filed a motion for leave to exceed page limitations, ECF 131, which shall be

granted.

2 The following facts are drawn from allegations contained in the Fourth Amended Complaint.

Additional facts relevant to the Court’s analysis of the issues presented in DPSCS Defendants’ motion will

be described in Part IV of this Memorandum Opinion.

In contravention of DPSCS policies, DPSCS officials placed Gilliam with male inmates at

BCCC without assessing the risk that she would be sexually victimized or asking for her views as

to a safe housing placement. Id. ¶¶ 48, 71–75, 105–06. She was forced to shower with male

inmates, and a male inmate physically and sexually assaulted her in the shower. Id. ¶¶ 47–49, 124–

26, 133–135. Gilliam reported the assault, but no action was taken. Id. ¶¶ 49, 126–27. Correctional

staff promised to accommodate Gilliam during her incarceration, including with separate

showering facilities, but these promises were not honored. Id. ¶¶ 47, 129–31. Staff at BCCC and

MRDCC also misgendered Gilliam and denied her hormone treatment. Id. ¶ 47.

DPSCS transferred Gilliam to MRDCC in February 2022. Id. ¶ 185. Gilliam was kept in

administrative segregation at MRDCC for about three months, until her release from custody. Id.

¶¶ 50, 185–86. During this time, she was only allowed to be out of her cell for an hour a day and

was not allowed to leave her cell at all on weekends. Id. ¶ 50. Despite having no disciplinary

infractions, she was shackled any time she left her cell, including in the shower. Id. ¶¶ 50, 187.

DPSCS officials would not release Gilliam to general population unless she signed a waiver

releasing the department of liability, which she refused to do. Id. ¶¶ 50, 189–193. Gilliam feels

that she was punished while in administrative segregation for refusing to sign the waiver. Id.

B. Chloe Grey

Grey has been incarcerated at DPSCS facilities since 2016. Id. ¶ 10. She was incarcerated

at Western Correctional Institution (“WCI”) between 2016 and 2023 and was transferred to

Patuxent Institution (“Patuxent”) in 2023. Id.3 Grey was diagnosed with gender dysphoria in

March 2021 and began hormone therapy in December 2021. Id. ¶¶ 51–52. She changed her name

3 Following a housing placement assessment conducted in response to the Court’s Order granting

preliminary injunctive relief, see ECF 75, DPSCS transferred Grey to North Branch Correctional

Institution, see ECF 85, 95. Plaintiff has since been transferred back to WCI. See ECF 140.

and gender identity in 2023. Id. ¶ 51. Grey’s hormone therapy was consistently delayed or denied

at both WCI and Patuxent. Id. ¶ 52.

Grey continued to be housed with men after transitioning and has been sexually assaulted

by male inmates on multiple occasions. Id. ¶¶ 54, 136, 138. Grey’s housing placement was made

in violation of DPSCS policies, without assessing the risk that she would be sexually victimized

or asking for her views as to a safe housing placement. Id. ¶ 113. Prison staff responded to Grey’s

complaints of victimization and harassment by placing her in administrative segregation. Id. ¶ 55.

Grey has felt “punished” for being transgender and her experience in administration segregation

made her feel depressed and isolated. Id. ¶ 56.

Upon her removal from administrative segregation, Grey was forced to share a cell with an

inmate “known for raping his cellmates,” and this cellmate did in fact attempt to rape Grey. Id. ¶¶

57–58, 141. An officer intervened, but the cellmate was not disciplined. Id. When Grey attempted

to file a complaint, a psychologist at WCI discouraged and prevented her from doing so, and the

same cellmate attempted to rape her again. Id. ¶¶ 59, 142–43.

Prison staff and inmates have routinely ridiculed and misgendered Grey and referred to her

by slurs. Id. ¶¶ 53, 135. She has been called “it,” told a “pig with lipstick on is still a pig,” and that

she was “trying to start a ‘culture war.’” Id. ¶ 135.

WCI officials removed Grey from her prison job as an education aide after she was

diagnosed with gender dysphoria and began hormone treatment. Id. ¶¶ 207–09. She was told this

decision was made due to concerns that she “would be sexually promiscuous on the job.” Id. ¶

209.

Grey was transferred to Patuxent in September 2023. Id. ¶ 105. On or about October 15,

2023, following an incident where Grey was sexually harassed by a male inmate, Grey was placed

in administrative segregation at Patuxent. Id. ¶¶ 151–53.

C. Kennedy Holland

Holland was incarcerated at BCCC from August 2019 to August 2023, and she is now on

supervised parole. Id. ¶ 13. She was previously incarcerated at Eastern Correctional Institution

(“ECI”), Maryland Correctional Institution–Hagerstown (“MCIH”), Maryland Correctional

Institution–Jessup (“MCIJ”), and MRDCC. Id. Holland began transitioning in 2003 and was

formally diagnosed with gender dysphoria in 2010. Id. ¶ 62. She has a feminine appearance, helped

in part by hormone therapy, which she began receiving prior to her incarceration. Id. ¶¶ 62–63.

Her hormone treatment was often inconsistent and delayed while she was incarcerated. Id.

¶¶ 64, 182. Although Holland was prescribed to receive oral hormone treatment every day and

injections every two weeks, she had to wait up to two months for oral hormone treatment and up

to one month for injections. Id. ¶¶ 63–65, 183–84.

Holland was initially detained at MRDCC, where the Prison Rape Elimination Act

(“PREA”) Coordinator assured Holland she would not be put in an “open housing facility” because

of the risk of sexual assault. Id. ¶ 115. Nonetheless, Holland was housed with men and was strip-

searched by male officers. Id. ¶ 67. She was promised that she would not be housed with men and

that she would have a private shower at ECI, but neither promise was honored. Id. ¶¶ 65–66. At

MCIJ, two male inmates attempted to rape Holland. Id. ¶¶ 162–63. Prison officials did not take

any action in response, and Holland continued to live in the cell next to her would-be assailants

until her transfer to MCIH. Id. ¶ 164. At MCIH, a male correctional officer once opened the stall

door while Holland was showering, attempting to expose her to male inmates in the showers, and

invited the male inmates to “come and watch it [Holland] shower.” Id. ¶¶ 165–66. When Holland

complained to the PREA Coordinator, the incident was dismissed as “not a big deal.” Id. ¶ 167.

The only option prison officials gave Holland when she complained of being housed with

men at ECI was administrative segregation, where she was placed between late June and early

August 2023. Id. ¶¶ 68, 199. In administrative segregation, she was permitted to be out of her cell

for as little as 45 minutes at a time, and only every other day. Id. ¶¶ 69, 200. She felt this to be a

punishment, even though she had entered administrative segregation for protection. Id. ¶ 69.

Holland was also strip searched by male correctional officers and regularly referred to as a man by

prison staff. Id. ¶¶ 67, 161, 200.

Holland interviewed for a prison job for which she was qualified but was denied the

position because of her gender identity. Id. ¶ 210–11. She was told that prison staff believed

transgender persons to be “sexually promiscuous” in situations where security was relaxed. Id. ¶

212.

II. PROCEDURAL BACKGROUND

Plaintiffs filed their original Complaint on April 18, 2023, ECF 1, and filed an Amended

Complaint on May 1, 2023, ECF 13. The Court granted leave for Plaintiffs to file a Second

Amended Complaint on July 21, 2023. ECF 30 (Order); ECF 31 (Second Amended Complaint).

After DPSCS Defendants filed a motion to dismiss the Second Amended Complaint or, in the

alternative, motion for summary judgment, ECF 41, Plaintiffs moved again to amend their

pleading, ECF 44, and the Court granted the motion, ECF 45. The Third Amended Complaint was

docketed on November 2, 2023. ECF 46.

Thereafter, plaintiff Chloe Grey filed a motion for preliminary injunctive relief against

DPSCS Defendants, ECF 50, and these defendants opposed the motion, ECF 59. The Court

conducted a hearing on the motion on three dates in November and December 2023, and entered

an Order granting the motion in part and denying it in part, ECF 75.

On January 16, 2024, DPSCS Defendants moved to dismiss, or for summary judgment on,

the Third Amended Complaint. ECF 87. In February 2023, Plaintiffs filed an opposition to the

motion, ECF 94, and Grey filed a motion to enforce the preliminary injunction, ECF 95, which

DPSCS Defendants opposed, ECF 105. Following a hearing on the matter, the Court later granted

in part, and denied in part, Grey’s motion to enforce. ECF 119.

On June 14, 2024, Plaintiffs filed a motion for leave to file a Fourth Amended Complaint,

ECF 114, and, after briefing, the Court granted the motion in part, pursuant to the liberal standard

for amending pleadings. ECF 123. The Court directed docketing of the Plaintiffs’ proposed Fourth

Amended Complaint but found the amendment to Count X to be futile and ordered it stricken. Id.

The Fourth Amended Complaint was docketed on July 18, 2024. ECF 124 (“4AC”). In the

Fourth Amended Complaint, Plaintiffs assert claims against DPSCS; Carolyn Scruggs, Secretary

of DPSCS; J. Philip Morgan, Commissioner of Corrections; Damilare Adisa-Thomas,

Administrator of BCCC; Nurudeen Matti, Warden of MRDCC; William Bailey, Warden of ECI;

Christopher Smith, Warden of MCIJ; Gregory Werner, Warden of MCIH; Orlando Johnson,

Acting Warden of Patuxent;4 Kimberly Stewart, Assistant Warden of Patuxent; Ronald Weber,

Warden of WCI; Michele Gardner, DPSCS Coordinator for the Americans with Disabilities Act

(“ADA”) and Rehabilitation Act (“RA”); Sharon Baucom, Chief Medical Officer of DPSCS;

David Wolinski, PREA Coordinator for DPSCS; April Peterson, PREA Compliance Manager at

4 Orlando Johnson was no longer Acting Warden when the Fourth Amended Complaint was filed.

See ECF 132-4. He is sued in this action in his official capacity. Pursuant to Rule 25(d) of the Federal Rules

of Civil Procedure, Johnson’s successor shall substitute him as a party in this action. For present purposes,

however, the Court will refer to the Warden of Patuxent as “Johnson.”

Patuxent;5 Betsy Nwosu, PREA Compliance Manager at MRDCC; Fateema Mobley, PREA

Compliance Manager at MCIJ; Kelly Partlow, PREA Compliance Manager at MCIH; and Donald

Gallagher, PREA Compliance Manager at ECI; unnamed DPSCS correctional officers and staff

(“Housing Does” and “Custody Does”), and medical providers and staff (“Health Care Does”);6

and YesCare Corporation (“YesCare”).7

Plaintiffs allege failure to protect, failure to provide medical care, cruel and unusual

punishment, and sex discrimination under the Eighth and Fourteenth Amendments to the U.S.

Constitution (Counts I through VII). Plaintiffs next allege discrimination on the basis of disability

under Title II of the ADA and Section 504 of the RA (Counts VIII and IX). Finally, plaintiffs

allege negligence and intentional infliction of emotional distress under Maryland law (Counts X,

XI, and XII).8 Plaintiffs seek declaratory and injunctive relief, as well as an award of compensatory

and punitive damages.

YesCare filed an Answer to the Fourth Amended Complaint on August 15, 2024. ECF 130.

On the same date, DPSCS Defendants filed a Motion to Dismiss Fourth Amended Complaint, or

5 The Court notes that the Fourth Amended Complaint states “[o]n information and belief, Assistant

Warden Stewart also serves as the PREA Compliance Manager at Patuxent.” 4AC ¶ 22.

6 The Fourth Circuit “recognize[s] the necessity for allowing John Doe suits in the federal courts,”

and counsels dismissal of John and Jane Doe suits without prejudice only where it does not appear that an

unidentified party’s true name can be ascertained through discovery or court intervention. Schiff v. Kennedy,

691 F.2d 196, 198 (4th Cir. 1982).

7 Scruggs, Morgan, Adisa-Thomas, Matti, Bailey, Smith, Werner, Johnson, Weber, and Gardner are

each sued in their official capacity. Stewart, Baucom, Wolinski, Peterson, Nwosu, Mobley, Partlow,

Gallagher, Housing Does, Custody Does, and Health Care Does are each sued in their individual and official

capacities. DPSCS and all named defendant DPSCS officials and staff are referred to herein as “DPSCS

Defendants.”

8 Plaintiffs Gilliam, Holland, and Grey share the sex discrimination, disability discrimination,

negligence, and intentional infliction of emotional distress claims, although their claims are asserted against

different sets of defendants (Counts VII through XII). Holland and Grey share all Eighth Amendment

claims, although their claims are asserted against different sets of defendants (Counts IV through VI).

Gilliam’s claims for failure to protect, failure to provide medical care, and cruel and unusual punishment

are unique to her (Counts I through III).

in the Alternative, Motion for Summary Judgment. ECF 132. Plaintiffs filed a response in

opposition to the motion, ECF 138, and a notice of supplemental authority, ECF 141. DPSCS

Defendants filed a reply in support of the motion. ECF 142.

III. STANDARD OF REVIEW

A. Motion to Dismiss

A defendant may challenge a court’s subject matter jurisdiction over a case by filing a

motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure. The plaintiff bears

the burden of proving that the court indeed has jurisdiction over the matter. Demetres v. E.W.

Constr., Inc., 776 F.3d 271, 272 (4th Cir. 2015) (citing Evans v. B.F. Perkins Co., 166 F.3d 642,

647 (4th Cir. 1999)).

A motion to dismiss under Rule 12(b)(6) constitutes an assertion by a defendant that, even

if the facts alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Under Rule 8(a)(2), a complaint 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 rule is to “give the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (cleaned up).

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead enough factual

allegations “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A

claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). A complaint need not include “detailed factual allegations,” but it must

set forth “enough factual matter (taken as true) to suggest” a cognizable cause of action, “even

if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote and unlikely.”

Twombly, 550 U.S. at 555–56 (internal quotation marks omitted). Federal pleading rules “do not

countenance dismissal of a complaint for imperfect statement of the legal theory supporting the

claim asserted.” Johnson v. City of Shelby, 574 U.S. 10, 11 (2014) (per curiam). However, “a

plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels

and conclusions, and a formulaic recitation of the elements of a cause of action’s elements will not

do.” Twombly, 550 U.S. at 555 (cleaned up).

When considering a Rule 12(b)(6) motion to dismiss, a court must take the factual

allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff.

King v. Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016). At the same time, “a court is not required

to accept legal conclusions drawn from the facts.” Retfalvi v. United States, 930 F.3d 600, 605 (4th

Cir. 2019) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Ordinarily, a court “is not to

consider matters outside the pleadings or resolve factual disputes when ruling on a motion to

dismiss.” Bosiger v. U.S. Airways, Inc., 510 F.3d 442, 450 (4th Cir. 2007). If the court does

consider matters outside the pleadings, “the motion must be treated as one for summary judgment

under Rule 56[,]” but “[a]ll parties must be given a reasonable opportunity to present all the

material that is pertinent to the motion.” Fed. R. Civ. P. 12(d).

The U.S. Court of Appeals for the Fourth Circuit “has articulated two requirements for

proper conversion of a Rule 12(b)(6) motion to a Rule 56 motion: (1) notice and (2) a reasonable

opportunity for discovery.” Canty v. Corcoran, Civ. No. GLR-18-1404, 2022 WL 899278, at *4

(D. Md. Mar. 28, 2022) (citing Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of Balt.,

721 F.3d 264, 281 (4th Cir. 2013)). Converting a motion to dismiss to a summary judgment motion

is not appropriate “where the parties have not had an opportunity for reasonable discovery.” E.I.

Du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448. The party opposing

conversion may file a declaration pursuant to Rule 56(d)9 explaining the reasons why “it cannot

present facts essential to justify its opposition” without discovery. Fed. R. Civ. P. 56(d); see also

Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244–45 (4th Cir. 2002). Generally,

courts are guided by whether consideration of extraneous material “is likely to facilitate the

disposition of the action,” and “whether discovery prior to the utilization of the summary judgment

procedure” is necessary. 5 Wright & Miller, Fed. Prac. & Proc. § 1366 (3d ed. 2004).

B. Motion for Summary Judgment

A court may grant a party’s summary judgment motion under Rule 56 if “the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);

Cybernet, LLC v. David, 954 F.3d 162, 168 (4th Cir. 2020). “[T]he mere existence of some alleged

factual dispute between the parties will not defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson

v. Liberty Lobby Inc., 477 U.S. 242, 247–48 (1986) (emphasis removed). A fact is “material” if it

“might affect the outcome of the suit under the governing law[,]” and a genuine issue as to material

fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Id. at 248; see also Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016). A party can establish

the absence or presence of a genuinely disputed fact through “particular parts of materials in the

record, including depositions, documents, electronically stored information, affidavits or

declarations, stipulations (including those made for purposes of the motion only), admissions,

interrogatory answers, or other materials[.]” Fed. R. Civ. P. 56(c)(1)(A). The court must view all

9 Rule 56(d) of the Federal Rules of Civil Procedure provides that “[i]f a nonmovant shows by

affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition

[to a motion for summary judgment], the court may (1) defer considering the motion or deny it; (2) allow

time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.”

the facts, including reasonable inferences drawn from them, in the light most favorable to the

nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). But the

court is not permitted to weigh the evidence, make credibility determinations, or decide the truth

of disputed facts. Anderson, 477 U.S. at 249.

IV. ANALYSIS

A. Conversion to a Motion for Summary Judgment

DPSCS Defendants styled their motion to dismiss alternatively as one for summary

judgment and attached exhibits for the Court’s consideration, thereby placing Plaintiff on notice

that the motion could be disposed of under Rule 56. See, e.g., E.W. by & through T.W. v. Dolgos,

884 F.3d 172, 178 n.2 (4th Cir. 2018) (“[Plaintiff] was on notice that the motion could be converted

to one for summary judgment because [defendants] styled it in the alternative, and [plaintiff]

similarly submitted an opposition brief in the alternative.”). They argue they are entitled to

summary judgment on the claims asserted by Holland and Grey because these plaintiffs failed to

exhaust their administrative remedies. ECF 132-2 at 6–11. In support of their exhaustion argument,

DPSCS Defendants present as attachments to their motion certain inmate grievance records and

affidavits from DPSCS records custodians. See ECF 132-4 through 132-8.

In response to DPSCS Defendants’ prior motion to dismiss, Plaintiffs submitted the affidavit

of one of their attorneys, Eve L. Hill, pursuant to Rule 56(d), ECF 94-1, as well as copies of

administrative remedy forms submitted by Grey and Holland while incarcerated, supported by a

declaration from each of these plaintiffs, ECF 94-2 through 94-11. In her Rule 56(d) affidavit,

Attorney Hill articulates a need for access to the inmate grievance process employed at each

relevant DPSCS facility and at the DPSCS Inmate Grievance Office, as well as Grey’s and

Holland’s administrative remedy files, which would be available through the discovery tools of

document requests, interrogatories, and depositions. Hill Aff. ¶¶ 15–20. In addition, in their

respective declarations, Grey and Holland each explain in detail how the administrative remedy

process was either restricted or unavailable to her at certain times when she sought to pursue her

administrative remedies. See ECF 94-2 (Grey Declaration); ECF 94-6 (Holland Declaration).

The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought

with respect to prison conditions under [42 U.S.C. §] 1983 . . . , or any other Federal law, by a

prisoner confined in any jail, prison, or other correctional facility until such administrative

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion requires completion

of “the administrative review process in accordance with the applicable procedural rules, including

deadlines.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). Although the PLRA requires the

prisoner to exhaust available remedies, “an administrative remedy is not considered to have been

available if a prisoner, through no fault of [her] own, was prevented from availing [her]self of it.”

Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008).

Notably, however, DPSCS has exempted claims falling under the Prison Rape Elimination

Act (“PREA”) from the exhaustion requirement. See Johnson v. Robinette, 105 F.4th 99, 109 (4th

Cir. 2024) (“[DPSCS] does not permit the use of an informal resolution process . . . to resolve

complaints of rape, sexual assault, sexual harassment, sexual abuse, sexual misconduct, [or] inmate

on inmate sexual conduct . . . .”) (citation omitted). Indeed, “[DPSCS] inmates [bringing sexual

abuse allegations] may proceed directly to court.” Id. at *2 (citing National Standards To Prevent,

Detect, and Respond to Prison Rape, 77 Fed. Reg. 37106-01, at 37109).

Here, Attorney Hill’s affidavit specifies the need for particular forms of discovery on

matters bearing on whether Grey and Holland properly exhausted their administrative remedies

and whether the administrative remedy process was available to each of them when needed. See

Hill Aff. ¶¶ 15–20. Grey’s and Holland’s declarations suffice to raise genuine questions as to

whether the administrative remedy process was consistently available to each of them such that

proper exhaustion of their claims was practicable. See generally Grey Decl. & Holland Decl. For

these reasons, the Court finds that it would be premature and improper to assess the merits of

DPSCS Defendants’ administrative exhaustion defense without first providing a reasonable

opportunity for discovery. Defendants may re-raise the exhaustion issue, if appropriate, at a later

stage of the litigation.10

B. Counts I through VI: Eighth Amendment and Due Process Violations

In Counts I through VI, Plaintiffs assert claims under 42 U.S.C. § 1983 against certain

DPSCS Defendants in either their official or individual capacities for alleged violations of the

Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. DSPSC

Defendants challenge Plaintiffs’ official-capacity claims in these counts on grounds of immunity

under the Eleventh Amendment and for failure to state a claim. ECF 132-2 at 11–32.

1. Eleventh Amendment Immunity and the Ex Parte Young Doctrine

The Eleventh Amendment to the U.S. Constitution generally bars claims brought in federal

court under 42 U.S.C. § 1983 against a State, its departments and agencies, or state officials in

their official capacity. See Quern v. Jordan, 440 U.S. 332, 338–45 (1979); Pennhurst State Sch.

and Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (“[I]n 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.”); id. at 120 (“[I]f a § 1983 action alleging a constitutional claim is brought directly

10 The Court has considered whether to order limited discovery on the issue of administrative

exhaustion and declines to do so. Review of the Fourth Amended Complaint indicates that Plaintiffs’

PREA-based claims, which do not require administrative exhaustion, are closely related to claims that may

require administrative exhaustion. Full discovery as to all remaining claims is likely necessary to determine

whether any of them are ultimately subject to dismissal for failure to exhaust.

against a State, the Eleventh Amendment bars a federal court from granting any relief on that

claim.”); Kitchen v. Upshaw, 286 F.3d 179, 183 (4th Cir. 2002) (“The Eleventh Amendment[ ]

limits the Article III jurisdiction of the federal courts to hear cases against States and state officers

acting in their official capacities.”) (footnote omitted); Lawson v. Union Cnty. Clerk of Ct., 828

F.3d 239, 250 (4th Cir. 2016) (states and state agencies alike are protected from federal suit by the

Eleventh Amendment) (citations omitted); Gregory v. Currituck Cnty., No. 21-1363, 2022 WL

1598961, at *2 (4th Cir. May 20, 2022) (per curiam) (“[C]laims for damages brought under § 1983

can only be brought against ‘persons’ acting under color of state law, and neither states nor state

officials acting in their official capacities are considered ‘persons’ under § 1983.”) (citation

omitted).

The Ex Parte Young doctrine provides an exception to Eleventh Amendment immunity in

cases where a plaintiff seeks injunctive relief against state officials for violations of federal rights.

See Ex Parte Young, 209 U.S. 123 (1908). This exception “allows private citizens, in proper cases,

to petition a federal court to enjoin State officials in their official capacities from engaging in future

conduct that would violate the Constitution or a federal statute.” Indus. Servs. Grp., Inc. v. Dobson,

68 F.4th 155, 163 (4th Cir. 2023) (citing Ex Parte Young, 209 U.S. at 159). The Ex Parte Young

exception “rests on the [legal fiction] that when a federal court commands a state official to do

nothing more than refrain from violating federal law, he is not the State for sovereign-immunity

purposes.” Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 254–55 (2011). The doctrine does

not apply when the state is the real party-in-interest, such as when the relief sought “would expend

itself on the public treasury . . . or interfere with public administration.” Id. at 255 (cleaned up).

But the doctrine “permits federal courts to enjoin state officials to conform their conduct to

requirements of federal law, notwithstanding a direct and substantial impact on the state treasury.”

Antrican v. Odom, 290 F.3d 178, 185–86 (4th Cir. 2002) (quoting Milliken v. Bradley, 433 U.S.

267, 289 (1977)). Thus, in determining whether the Ex Parte Young exception applies, the court’s

inquiry must focus “not on whether the injunctive relief sought would have an impact on the State

treasury,” but must focus instead on “whether the injunctive relief sought is prospective or

retroactive in nature.” Id. at 186. “[A] court need only conduct a straightforward inquiry into

whether the complaint alleges an ongoing violation of federal law and seeks relief properly

characterized as prospective.’” Dobson, 68 F.4th at 163–64 (quoting Verizon Md. Inc. v. Pub. Serv.

Comm’n, 535 U.S. 635, 645 (2002)).

In Counts I through VI, Plaintiffs assert claims under § 1983 against various DPSCS

officials in their official capacity for alleged violations of federal constitutional rights. These

official-capacity claims are barred by Eleventh Amendment immunity, unless they are based on

ongoing federal violations for which prospective relief is sought such that the Ex Parte Young

doctrine applies. Importantly, Gilliam and Holland have each been released from DPSCS custody;

Gilliam is on supervised probation, 4AC ¶ 9, and Holland is on supervised parole, id. ¶¶ 11, 114.

Plaintiffs do not allege that the violations of Gilliam’s and Holland’s rights are ongoing, and these

plaintiffs cannot plausibly obtain prospective injunctive relief. Because any claims for prospective

injunctive relief for Gilliam and Holland are now moot, these plaintiffs’ official-capacity claims

in Counts I through VI are subject to dismissal. See Rendelman v. Rouse, 569 F.3d 182, 186 (4th

Cir. 2009) (“[A]s 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.”).

Plaintiffs contend that Gilliam and Holland are at an increased risk of re-incarceration due

to their supervision status and, on this basis, argue that the alleged violations of their rights are

“capable of repetition, yet evading review.” ECF 138 at 11 (quoting Spencer v. Kemna, 523 U.S.

1, 17 (1998)). The Court is not persuaded. The “capable-of-repetition” exception to the mootness

doctrine “applies only in exceptional situations,” Spencer, 523 U.S. at 17 (citation omitted), where

“(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or

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

subjected to the same action again[,]” United States v. Sanchez-Gomez, 584 U.S. 381, 391 (2018)

(quoting Turner v. Rogers, 564 U.S. 431, 439–440 (2011)). Gilliam’s and Holland’s supervision

statuses are inadequate support for any “reasonable expectation” that either plaintiff will re-enter

DPSCS custody and will be subject to the same violations alleged in the Fourth Amended

Complaint. Drawing an inference that either Gilliam or Holland will be re-incarcerated may call

for the Court to “forecast bad behavior” by these plaintiffs without any basis for doing so. Incumaa

v. Ozmint, 507 F.3d 281, 289 (4th Cir. 2007). The Court instead presumes that Gilliam and Holland

will comply with the terms of their supervision and will not be subject to the same violations by

DPSCS and its officials alleged in the Fourth Amended Complaint. See Slade v. Hampton Roads

Reg’l Jail, 407 F.3d 243, 249 (4th Cir. 2005) (finding the lack of a reasonable probability that a

former pretrial detainee would be subject to pretrial detention again in the future). Therefore, the

“capable-of-repetition” exception does not apply to their official-capacity claims in Counts I

through VI for prospective injunctive relief, and these claims must be dismissed.

Grey, on the other hand, remains in DPSCS custody and alleges in Counts IV through VI

that, at two separate facilities, DPSC Defendants have failed to provide her with her prescribed

hormone therapy, failed to make reasonable modifications to her housing placement, failed to

protect her from male inmates, and improperly placed her in administrative segregation. 4AC ¶¶

241–69. Grey alleges that this conduct is ongoing and seeks a prospective injunction against it. Id.

at 60. The foregoing allegations support a reasonable expectation the alleged violations of Grey’s

rights will continue regardless of the particular facility in which she is placed. Accordingly, the Ex

Parte Young doctrine provides an exception to DPSCS Defendants’ Eleventh Amendment

immunity from Grey’s official-capacity § 1983 claims in Counts IV through VI.

2. Legal Background for Eighth Amendment and Due Process Claims

(Counts I through VI)

In Counts I through VI, Plaintiffs assert that certain DPSCS Defendants violated their rights

under the Eighth and Fourteenth Amendments in failing to protect them when housing them with

male inmates (Counts I and IV), failing to provide adequate medical care (Counts II and V), and

subjecting them to cruel and unusual punishment (Counts III and VI). Plaintiffs seek remedies

against DPSCS Defendants in both their individual and official capacities for the alleged

constitutional violations pursuant to 42 U.S.C. § 1983.11 DPSCS Defendants argue that all six

counts should be dismissed because Plaintiffs fail to state any plausible claim for relief against

them under § 1983. ECF 132-2 at 26–32.

To sustain an action under 42 U.S.C. § 1983, a plaintiff must demonstrate that: (1) she

suffered a deprivation of “rights, privileges, or immunities secured by the Constitution and laws”

of the United States; and (2) the act or omission causing the deprivation was committed by a person

acting under color of law. West v. Atkins, 487 U.S. 42, 45 n.3 (1988). A defendant’s own action—

or inaction—is required for liability under § 1983. See Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th

Cir. 1977). There is no respondeat superior liability under § 1983. Love-Lane v. Martin, 355 F.3d

766, 782 (4th Cir. 2004). Supervisors may be found liable only if the plaintiffs show they “acted

personally in the deprivation of the plaintiffs’ rights.” Vinnedge, 550 F.2d at 928 (quoting Bennett

v. Gravelle, 323 F. Supp. 203, 214 (D. Md. 1973), aff’d, 451 F.2d 1011 (4th Cir. 1971)). To state

11 As explained in Part IV.B.1 supra, Gilliam’s and Holland’s official-capacity claims in Counts I

through VII are subject to dismissal for lack of subject-matter jurisdiction, but they also seek relief in these

counts against certain DPSCS Defendants in their individual capacities. See 4AC at 38–46.

a claim for supervisory liability under § 1983 based on a subordinate’s conduct, the plaintiff must

allege that (1) the supervisor had actual or constructive knowledge that a subordinate’s conduct

“posed a pervasive and unreasonable risk of constitutional injury to citizens like the plaintiff”; (2)

the supervisor responded in a manner that was so inadequate that it showed “deliberate indifference

to or tacit authorization” of the subordinate’s conduct; and (3) there was “an affirmative causal

link between the supervisor’s inaction” and the plaintiff’s constitutional injury. Timpson ex rel.

Timpson v. Anderson Cnty. Disabilities & Special Needs Bd., 31 F.4th 238, 257 (4th Cir. 2022)

(quoting Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)). “Establishing a ‘pervasive’ and

‘unreasonable’ risk of harm requires evidence that the conduct is widespread[,]” and plaintiffs

must show that the offending conduct “has been used on several different occasions.” Wilkins v.

Montgomery, 751 F.3d 214, 226 (4th Cir. 2014) (quoting Shaw, 13 F.3d at 799).

The Eighth Amendment’s guarantee against cruel and unusual punishment “protects

inmates from inhumane treatment and conditions while imprisoned.” Williams v. Benjamin, 77

F.3d 756, 761 (4th Cir. 1996). This protection against cruel and unusual punishment is

incorporated by the Due Process Clause of the Fourteenth Amendment and enforced against state

governments. See Robinson v. California, 370 U.S. 660, 666–67 (1962). In addition to protecting

post-conviction detainees from cruel and unusual punishment, the Fourteenth Amendment Due

Process Clause “protects pretrial detainees from being punished at all.” Short v. Hartman, 87 F.4th

593, 606 (4th Cir. 2023), cert. denied, 144 S. Ct. 2631 (2024) (citing Bell v. Wolfish, 441 U.S. 520,

535–37 & n.16 (1979)). Thus, governmental conduct that violates the Eighth Amendment

guarantee also violates the Fourteenth Amendment’s protection against conditions of pretrial

detention that “amount to punishment.” Id. at 606, 608.

The Fourth Circuit has observed that “not all Eighth Amendment violations are the same:

some constitute ‘deliberate indifference,’ while others constitute ‘excessive force.’” Thompson v.

Virginia, 878 F.3d 89, 97 (4th Cir. 2017) (quoting Whitley v. Albers, 475 U.S. 312, 319–20 (1986)).

In general, the deliberate indifference standard applies to claims that prison officials have failed to

safeguard the inmate’s health and safety, maintained inhumane conditions of confinement, or

failed to render medical assistance or to provide medical care. See Farmer v. Brennan, 511 U.S.

825, 834 (1994); Wilson v. Seiter, 501 U.S. 294, 303 (1991); Thompson, 878 F.3d at 97.

To establish constitutional liability for deliberate indifference, a plaintiff in custody to

serve a sentence must satisfy a two-part inquiry with objective and subjective components. See

Raynor, 817 F.3d at 127. Objectively, the prisoner “must establish a serious deprivation of [her]

rights in the form of a serious or significant physical or emotional injury” or substantial risk of

serious injury. Danser v. Stansberry, 772 F.3d 340, 346–47 (4th Cir. 2014). The Court must “assess

whether society considers the risk that the prisoner complains of to be so grave that it violates

contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling v.

McKinney, 509 U.S. 25, 36 (1993). As to the subjective component, a plaintiff must establish that

the prison official involved had “a sufficiently culpable state of mind” amounting to “deliberate

indifference to inmate health or safety.” Farmer, 511 U.S. at 834. Evidence establishing a culpable

state of mind requires either actual knowledge of an excessive risk to the prisoner’s safety or proof

that prison officials were aware of facts from which an inference could be drawn that a substantial

risk of serious harm exists, and that the inference was actually drawn. Id. at 837. This standard

may be satisfied circumstantially with a showing that a substantial risk of harm to the plaintiff was

“so obvious that it had to have been known” and that a prison official subjectively disregarded the

risk. Porter v. Clarke, 923 F.3d 348, 361 (4th Cir. 2019), as amended (May 6, 2019) (quoting

Makdessi v. Fields, 789 F.3d 126, 136 (4th Cir. 2015), and citing Schaub v. VonWald, 638 F.3d

905, 915 (8th Cir. 2011)). Still, “a showing of mere negligence” will not satisfy this standard.

Grayson v. Peed, 195 F.3d 692, 695–96 (4th Cir. 1999). “[T]he Constitution is designed to deal

with deprivations of rights, not errors in judgment, even though such errors may have unfortunate

consequences.” Id.

Importantly, “pretrial detainees can state a claim under the Fourteenth Amendment, based

on a purely objective standard, for prison officials’ deliberate indifference to excessive risks of

harm.” Short, 87 F.4th at 604–05. “The Fourteenth Amendment Due Process Clause protects

pretrial detainees from ‘governmental action’ that is not ‘rationally related to a legitimate

nonpunitive governmental purpose’ or that is ‘excessive in relation to that purpose.’” Id. at 608–

09 (quoting Kingsley v. Hendrickson, 576 U.S. 389, 398 (2015)) (citations omitted). “[I]t is enough

that the plaintiff show that the defendant acted or failed to act ‘in the face of an unjustifiably high

risk of harm that is either known or so obvious that it should be known.’” Id. at 611 (citations

omitted). However, it is “not enough for the plaintiff to allege that the defendant negligently or

accidentally failed to do right by the detainee.” Id. at 611–12.

With the foregoing legal background, the Court proceeds to assess the sufficiency of

Plaintiffs’ pleading of Eighth and Fourteenth Amendment violations in Counts I through VI.

3. Failure to Protect (Counts I and IV)

In Counts I and IV, Plaintiffs allege that DPSCS officials and staff violated their Eighth

and Fourteenth Amendment rights by improperly housing them with male inmates, disregarding

the risk they would be sexually assaulted, and failing to protect them from sexual assault and

threats of physical violence. 4AC ¶¶ 213–23, 241–51. Count I is asserted by Gilliam for alleged

violations of the Fourteenth Amendment while she was in pretrial detention. Id. ¶¶ 213–23. Count

IV is asserted by Holland and Grey for alleged violations of the Eighth Amendment while they

were in post-conviction incarceration. Id. ¶¶ 241–51.

For a prisoner to demonstrate an Eighth Amendment violation based on a prison official’s

failure to protect her, she must show (1) that the failure was “objectively, sufficiently serious” and

(2) that the official “subjectively recognized a substantial risk of harm” and his response was

“inappropriate in light of that risk.” Ford v. Hooks, 108 F.4th 224, 230 (4th Cir. 2024). As a pretrial

detainee, Gilliam need only satisfy an objective test to establish a Fourteenth Amendment

violation. See Short, 87 F.4th at 611. Specifically, a pretrial detainee must “allege sufficient facts

to show that the defendant’s action or inaction was ‘objectively unreasonable’ in that ‘the

defendant acted or failed to act in the face of an unjustifiably high risk of harm that is either known

or so obvious that it should be known.” Olumakinde v. Baltimore Cnty. Det. Ctr., Civ. No. TDC-

24-0943, 2024 WL 5007456, at *3 (D. Md. Dec. 6, 2024) (quoting Short, 87 F.4th at 611); see also

Carmona v. Martin, No. 23-6930, 2024 WL 4490695, at *2 (4th Cir. Oct. 15, 2024) (unpub.)

(holding that pretrial detainee must show that the prison official “exposed [the plaintiff] to an

objectively substantial risk of serious harm[]” that “a reasonable official in [his] position would

have appreciated”) (quoting Younger v. Crowder, 79 F.4th 373, 382 (4th Cir. 2023)).

Despite their feminine gender presentation, Plaintiffs were each housed with male inmates

at various DPSCS facilities and forced to share showers with men. 4AC ¶¶ 48–54, 57, 65–66, 122–

26, 133–34, 145–47. In making these housing placements, DPSCS officials did not take Plaintiffs’

feminine appearance, their risk of sexual victimization, their views about their safety, or their

medical needs into account, id. ¶¶ 104–06, 113, 117, as required by DPSCS policy, id. ¶¶ 70–76.

Gilliam was housed alongside male inmates at BCCC and made to use communal toilets

and showers. Id. ¶¶ 48–49, 122–26. She was threatened and then assaulted by a male inmate while

in the shower at BCCC after she refused the assailant’s sexual advances and initially tried to avoid

him. Id. ¶¶ 49, 124–25. Gilliam made two separate reports about her rape, but DPSCS officials

“took no action.” Id. ¶¶ 49, 126–27. Promises to accommodate Gilliam by allowing her to shower

and go to recreation alone were not honored. Id. ¶¶ 49, 130–31.

Holland was housed with male inmates at MCIJ and ECI, notwithstanding her feminine

presentation. Id. ¶ 65. At MCIJ, a male inmate attempted to sexually assault Holland, and DPSCS

staff took no action in response. Id. ¶¶ 162–64. Additionally, a correctional officer at MCIH

actively encouraged other inmates’ derision and harassment of Holland by attempting to expose

her in the shower and inviting male inmates to watch. Id. ¶¶ 165–66. When Holland reported the

incident to a PREA Coordinator at MCIH, he dismissed it as “not a big deal.” Id. ¶ 167.

Grey was also housed with male inmates at WCI. Id. ¶¶ 54–55. In April or May 2022, a

male inmate sexually assaulted Grey while a prison official looked away. 4AC ¶¶ 54, 136. When

the sexual assault was reported to a housing manager, he declined to file a PREA complaint. Id. ¶

137. In addition, Grey was regularly raped by a male cellmate at WCI but “put up with it because

she was terrified of being placed in administrative segregation if she complained.” Id. ¶ 138. When

Grey complained about the assaults, she was placed in administrative segregation for a month. Id.

¶ 139. Upon her return, she was placed in a cell with another male inmate “known for raping his

cellmates,” who did attempt to rape Grey. Id. ¶¶ 57–58, 140–41. A correctional officer intervened

in this assault but did not discipline the cellmate. Id. ¶ 141. Grey tried to lodge a PREA complaint

when the cellmate attempted to rape her again, but the psychologist at WCI refused to accept the

complaint and told her not to file it. Id. ¶¶ 58–59, 141–42. Grey was eventually moved to a single

cell on a different tier but still received violent threats and demands for sex from male inmates,

particularly if she went to the communal shower, and prison staff would not let her shower by

herself. Id. ¶¶ 144–49. After Grey was transferred to Patuxent, a male inmate attempted to

proposition sex from her, and correctional officers refused to allow her to file a PREA complaint.

Id. ¶¶ 150–53. The rules of the tier at Patuxent where Grey was placed did not allow inmates to be

out of their cells without handcuffs and an escort, but the inmate who sexually harassed Grey had

neither and was able to go to Grey’s cell, expose his penis, and demand oral sex. Id. ¶¶ 150–51.

The Court finds the foregoing facts sufficient to support a reasonable inference that, due to

Plaintiffs’ housing placement and subsequent inaction by DPSCS officials, each Plaintiff suffered

injuries and a substantial risk of further injuries serious enough to violate contemporary standards

of decency. See Helling, 509 U.S. at 36. Drawing reasonable inferences in Plaintiffs’ favor, an

unjustifiably high risk of harm to each Plaintiff either was known or should have been obvious to

the DPSCS officials involved in her housing placement and responsible for her safety. “The

vulnerability of transgender prisoners to sexual abuse is no secret.” Zollicoffer v. Livingston, 169

F. Supp. 3d 687, 691 (S.D. Tex. 2016); see also Tay v. Dennison, 457 F. Supp. 3d 657, 684–85

(S.D. Ill. 2020) (citing various cases for the proposition that a feminine-presenting transgender

inmate in a male prison is at serious risk of sexual assault). DPSCS has recognized transgender

status as a risk factor for sexual assault. 4AC ¶ 70; Assessment for Risk of Sexual Victimization

and Abusiveness, OPS.200.0006, § .05(g) (2018). The Fourth Amended Complaint cites, among

other reports, a 2013 study by the Department of Justice in which it estimated that 35% of

transgender inmates in state and federal prisons were sexually assaulted between 2007 and 2012,

nearly ten times the rate for prisoners as a whole. 4AC ¶ 118 n.22; U.S. Dep’t of Justice Off. of

Justice Programs, Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12 (2014),

https://www.ojp.gov/library/publications/sexual-victimization-prisons-and-jails-reported-

inmates-2011-12. The rate of sexual assault reported by transgender inmates in jails and detention

centers was around the same as for those in prisons. Id.

Furthermore, Plaintiffs have alleged sufficient facts to support a reasonable inference that

Housing and Custody Does acted with a culpable state of mind amounting to deliberate

indifference to Holland’s and Grey’s safety. Specifically, at least one correctional officer

attempted to expose Holland to male inmates while she was showering, notwithstanding her

heightened risk of sexual assault as a feminine-presenting transgender inmate. When Holland

complained to the PREA Coordinator at MCIH, he was dismissive and, the Court infers, took no

action. As to Grey, a Housing Doe “looked the other way” when Grey was being sexually assaulted

by a male inmate. 4AC ¶ 136. When she was vocal about the threats and assaults she endured,

DPSCS Defendants prevented and discouraged her from seeking relief.

For the foregoing reasons, Plaintiffs’ failure-to-protect claims against Housing and

Custody Does in their individual capacities will proceed. Grey’s official-capacity claims will also

proceed because she plausibly seeks prospective injunctive relief with respect to her housing

placements.

In Count IV, Holland and Grey also assert individual-capacity claims against defendants

Peterson, Mobley, and Partlow, PREA compliance managers at Patuxent, MCIJ and MCIH,

respectively. But Plaintiffs do not plead specific facts to indicate that any of these defendants were

personally involved in the alleged constitutional violations. Plaintiffs allege that “Defendants knew

of, but disregarded, the risk by housing Ms. Grey and Ms. Holland with male inmates[,]”4AC ¶

248, do not state any facts to raise above the speculative level any claim that Peterson, Mobley, or

Partlow12 personally disregarded the risks to Holland’s or Grey’s safety.

Plaintiffs’ individual-capacity claim against Stewart also fails for insufficient pleading.

Plaintiffs do not allege that Stewart was personally responsible for placing Grey with male inmates

with deliberate indifference to her risk of victimization. They allege that, when Grey complained

to Stewart about sexual harassment and threats she suffered from male inmates, Stewart was

dismissive, blamed Grey’s feminine appearance, and threatened to place her with a male inmate,

to remove her from her educational program, and to transfer her from Patuxent to WCI. For present

purposes, these facts suffice to establish that Stewart became aware that Grey’s housing placement

posed a risk to Grey. But Plaintiffs do not allege Stewart responded in a way that showed deliberate

indifference to the risk or tacit authorization of the housing placement that created the risk. To the

contrary, Plaintiffs allege that Grey was placed in a single cell after she complained to Stewart.

4AC ¶ 112. Therefore, Plaintiffs’ allegations fall short of stating a plausible claim that Stewart was

personally involved in the alleged violation of Grey’s rights or that she is liable as a supervisor.

See Vinnedge, 550 F.2d at 928 (holding that liability under § 1983 “will only lie where it is

affirmatively shown that the official charged acted personally in the deprivation of the plaintiffs’

rights”) (citation omitted); Timpson, 31 F.4th at 257 (holding that supervisory liability under §

1983 requires a response “so inadequate as to show deliberate indifference to or tacit authorization

of the alleged offensive practices”) (citation omitted); Love-Lane, 355 F.3d at 782 (“[T]here is no

respondeat superior liability under § 1983.”) (citation omitted).

12 Partlow is identified as “the PREA Compliance Manager at MCIH.” 4AC ¶ 29. Plaintiffs allege

that Holland attempted to lodge a PREA complaint with an unnamed PREA Coordinator at MCIH, id. ¶

167, but there are no facts to support a reasonable inference that Partlow was aware of this complaint. The

Fourth Amended Complaint indicates that PREA Compliance Manager and PREA Coordinator are separate

and distinct positions within DPSCS. See id. ¶¶ 25, 26, 27.

Accordingly, DPSCS Defendants’ motion will be granted in part and denied in part as to

Plaintiffs’ claims in Counts I and IV. Gilliam’s official-capacity claims in Count I and Holland’s

official-capacity claims in Count IV will be dismissed without prejudice for reasons explained in

Part IV.B.1 supra. Holland’s individual-capacity claims against Mobley and Partlow and Grey’s

individual-capacity claims against Stewart and Peterson in Count IV will be dismissed without

prejudice for inadequate pleading. Grey’s official-capacity claims in Count IV, and all Plaintiffs’

individual-capacity claims against Custody and Housing Does in both Counts I and IV, will

proceed.

4. Failure to Provide Adequate Medical Care (Counts II and V)

In Counts II and V, Plaintiffs allege that DPSCS medical providers and staff violated their

Fourteenth Amendment rights by failing to provide them adequate medical care for gender

dysphoria, including denial and delay of hormone therapy. 4AC ¶¶ 224–33, 252–61. Count II is

asserted by Gilliam for alleged violations of the Fourteenth Amendment while she was in pretrial

detention. Id. ¶ 226. Count V is asserted by Holland and Grey for alleged violations of the Eighth

Amendment while they were in post-conviction incarceration. Id. ¶ 252.

Pretrial detainees, like Gilliam, need only satisfy an objective test to present a viable claim

for deliberate indifference to a medical need in violation of the Fourteenth Amendment. See Short,

87 F.4th at 611. “To state a claim for deliberate indifference to a medical need, . . . a pretrial

detainee must plead that (1) they had a medical condition or injury that posed a substantial risk of

serious harm; (2) the defendant intentionally, knowingly, or recklessly acted or failed to act to

appropriately address the risk that the condition posed; (3) the defendant knew or should have

known (a) that the detainee had that condition and (b) that the defendant’s action or inaction posed

an unjustifiably high risk of harm; and (4) as a result, the detainee was harmed.” Id. A pretrial

detainee may also present a viable claim by satisfying the standard that applies to prisoners in post-

conviction incarceration under the Eighth Amendment, like Holland and Grey. See id. at 611–12.

An inmate in post-conviction incarceration must demonstrate that she had an objectively serious

medical condition and that the defendant prison official “had actual subjective knowledge of both

the inmate’s serious medical condition and the excessive risk posed by the official’s action or

inaction.” Id. at 612 (quoting Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014)). “A condition

is objectively serious if it is ‘diagnosed by a physician as mandating treatment’ or is ‘so obvious

that even a lay person would easily recognize the necessity for a doctor’s attention.’” Id. (quoting

Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016)).

In De’lonta v. Johnson, the Fourth Circuit recognized the World Professional Association

for Transgender Health’s (“WPATH”) Standards of Care for the Health of Transgender and

Gender Diverse People (“Standards of Care”) as “the generally accepted protocols for the

treatment of [gender identity disorder]” and that hormone therapy is one of the three pillars of its

treatment process. 708 F.3d 520, 522–23 (4th Cir. 2013); see also 4AC ¶¶ 86–89. Plaintiffs cite

two versions of WPATH’s Standards of Care in the Fourth Amended Complaint. See id. ¶¶ 86–

100. The Standards of Care apply “irrespective of [the transgender person’s] housing situation.”

Id. ¶ 89 (citation omitted). The seventh version of the Standards of Care was in effect during

Gilliam’s period of detention. Id. ¶ 87. It provided that “[p]eople who enter an institution on an

appropriate regimen of hormone therapy should be continued on the same, or similar, therapies

and monitored according to the [Standards of Care]. . . .” Id. ¶ 95. The seventh version noted that

“[t]he consequences of abrupt withdrawal of hormones . . . include a high likelihood of negative

outcomes such as surgical self-treatment by autocastration, depressed mood, dysphoria, and/or

suicidality.” Id. (citation omitted). The eighth version of WPATH’s Standards of Care went into

effect in September 2022. Id. ¶ 87. It characterized hormone therapy as “a lifesaving intervention”

in many cases and recommended hormone therapy “due to its demonstrated improvement in

psychosocial functioning and quality of life.” Id. ¶ 99. Consistent with WPATH’s Standards of

Care, DPSCS policy requires continuation of prescribed hormonal therapy for inmates with gender

dysphoria who are under an established and verified treatment plan, unless the contracted medical

services provider determines that the treatment regimen is contraindicated. 4AC ¶ 67;

Identification, Treatment, & Correctional Management of an Inmate Diagnosed with Gender

Dysphoria, OPS 131.0001.05, §§ F(1), (1)(a)–(1)(a)(i) (2016) (“DPSCS Gender Dysphoria

Policy”).

Gilliam was diagnosed with gender dysphoria in 2003. Id. ¶¶ 44, 46, 228. By the time she

was in DPSCS custody in 2021 and 2022, Gilliam had been undergoing hormone therapy for

several years, and she had a distinctly feminine appearance. Id. She was prescribed to receive

hormone treatment on a weekly basis. Id. ¶¶ 46, 228. Gilliam “told Defendants since her arrival at

BCCC in December 2021 that she needed weekly hormone treatment.” Id. ¶ 170. Nevertheless,

she was “denied hormone treatment for the majority of her incarceration.” Id. ¶¶ 47, 229–32.

Plaintiffs suggest that “Defendants . . . began to take [Gilliam’s request for hormone therapy]

seriously after [she] was sexually assaulted[,]” but hormone treatment was not approved for her

until February 2022. Id. ¶¶ 170–71. In the absence of hormone therapy, male characteristics began

to re-emerge for Gilliam, which caused her to become depressed, gender dysphoric, and suicidal.

Id. ¶¶ 96, 232.

Holland was diagnosed with gender dysphoria in 2010. 4AC ¶ 62. She received hormone

treatment consistently prior to her incarceration and is prescribed to receive oral hormone

treatment every day and hormone injections every two weeks. Id. ¶ 63. DPSCS officials were

informed of Holland’s need for hormone therapy upon her arrival at MRDCC. Id. ¶ 182.

Notwithstanding, Holland’s hormone treatment while in DPSCS custody was inconsistent; she

would go up to a month at a time for without receiving a hormone injection and up to two months

without her oral hormone treatments. Id. ¶¶ 64, 182–84. As a result, Holland perceived that her

appearance began to look more masculine, she felt “stalled” in her transition, and she experienced

depression and anxiety. Id. ¶¶ 97, 259.

Grey was diagnosed with gender dysphoria in 2021, while incarcerated at WCI. Id. ¶¶ 52,

172. Although she has been prescribed oral hormone treatment since December 2021, her

treatment was delayed between December 2021 and May 2023. Id. Grey has gone weeks without

receiving the hormones that she is prescribed to take twice daily. Id. ¶ 173. While Grey was in

administrative segregation, Health Care Does have repeatedly “forgotten” to refill her hormone

treatment. Id. ¶ 178. As a result of the inconsistent hormone treatment, Grey experienced feelings

of depression and anxiety. Id. ¶ 259. Grey made complaints regarding her inconsistent hormone

treatment, but “nothing was done,” and her treatment remained inconsistent at Patuxent. Id. ¶ 178.

In addition, Health Care Does “denied a medical order for electrolysis hair removal . . . .” Id. ¶

177.

The Court finds the foregoing facts sufficient to state plausible claims that Health Care

Does were deliberately indifferent to each Plaintiff’s serious medical needs. Each Plaintiff was

diagnosed with gender dysphoria, was prescribed hormone therapy, and presented with a feminine

appearance. Drawing reasonable inferences in Plaintiffs’ favor, the Court finds their gender

dysphoria to constitute an objectively serious medical condition. In each case, DPSCS officials

and medical providers were made aware of the plaintiff’s prescription and need for hormone

therapy as a vital treatment for gender dysphoria but, thereafter, failed to provide this treatment to

the Plaintiff on a consistent basis. Plaintiffs plausibly allege that this failure constituted a violation

of DPSCS policy and WPATH’s Standards of Care. The fact that each Plaintiff was provided

hormone treatment for part of her incarceration does not by itself defeat her claim to having been

denied constitutionally adequate medical care. See De’lonta, 708 F.3d at 526 (“[J]ust because

Appellees have provided De’lonta with some treatment consistent with [WPATH’s] Standards of

Care, it does not follow that they have necessarily provided her with constitutionally adequate

treatment.”). Drawing all reasonable inferences from Plaintiffs’ allegations in their favor, the

denial, delay, and inconsistent provision of hormone therapy while they were in DPSCS custody

resulted in substantial risks and harms to each Plaintiff, including depression, anxiety, and

suicidality. Prison officials have the duty to give inmates access to necessary mental health

treatment, see DePaola v. Clarke, 884 F.3d 481, 488 (4th Cir. 2018), and to protect inmates from

self-harm, see De’lonta, 708 F.3d at 525 (citing Lee v. Downs, 641 F.3d 1117, 1121 (4th Cir.

1981)).

Accordingly, DPSCS Defendants’ motion will be denied as to Gilliam’s individual-

capacity claims against Health Care Does in Count II, Holland’s individual-capacity claims against

Health Care Does in Count V, and all of Grey’s claims in Count V. Gilliam’s and Holland’s

official-capacity claims in these counts will be dismissed without prejudice for reasons explained

in Part IV.B.1 supra. In all other respects, Plaintiffs’ inadequate-medical-treatment claims will

proceed.

5. Conditions of Confinement (Counts III and VI)

In Counts III and VI, Plaintiffs allege that DPSCS officials and staff subjected them to

cruel and unusual punishment by placing them in administrative segregation for extended periods

of time. 4AC ¶¶ 234–40, 262–69. Count III is asserted by Gilliam for alleged violations of the

Fourteenth Amendment while she was in pretrial detention. Id. ¶¶ 234-40. Count V is asserted by

Holland and Grey for alleged violations of the Eighth Amendment while they were in post-

conviction incarceration. Id. ¶¶ 252-61.

“[T]o establish that she has been subjected to cruel and unusual punishment, a prisoner

must prove (1) that the deprivation of [a] basic human need was objectively sufficiently serious,

and (2) that subjectively the officials act[ed] with a sufficiently culpable state of mind.” De’lonta,

708 F.3d at 525 (citation omitted). To be sufficiently serious, the deprivation must result in, or

present a substantial risk of, a “serious or significant physical or emotional injury . . . .” Id. (citation

omitted). As a pretrial detainee, Gilliam need only show the objective component to establish a

Fourteenth Amendment violation. See Short, 87 F.4th at 611. As persons in post-conviction

incarceration, Holland and Grey must show that the defendant prison officials “actually kn[e]w of

and disregard[ed] an objectively serious condition . . . .” De’lonta, 708 F.3d at 525 (quoting

Farmer, 511 U.S. at 837).

In the Fourth Amended Complaint, Plaintiffs cite scholarly literature describing the severe

harms isolated housing can exact upon prisoners’ mental health and functioning, 4AC ¶ 205, and

note that rules set by the United Nations General Assembly “forbid the use of solitary confinement

for more than 15 days[,]” id. ¶¶ 101, 204 (citation omitted). Plaintiffs allege that “[a]dministrative

segregation is not substantively different from punitive segregation” and that this form of isolation

has “catastrophic consequences . . . on human beings’ basic mental stability, health, and

ability . . . .” 4AC ¶¶ 201, 205 (citation omitted). Transgender inmates in administrative

segregation, they allege, “suffer from ‘intense anxiety, confusion, lethargy, panic, impaired

memory, psychotic behavior, hallucinations and perceptual distortions, difficulty eating, inability

to communicate, hypersensitivity to external stimuli, violent fantasies, and reduced impulse

control.’” Id. ¶ 205 (citation omitted).

The Fourth Amended Complaint further outlines restrictions that PREA regulations and

DPSCS policy place on the use of administrative segregation. Id. ¶¶ 78–85. PREA regulations

forbid “[i]nmates at high risk for sexual victimization” from being “placed in involuntary

segregated housing unless an assessment of all available alternatives has been made, and a

determination has been made that there is no available alternative means of separation from likely

abusers.” 28 C.F.R. § 115.43(a). The assessment must be conducted immediately or within 24

hours of placement in segregated housing. Id. Assignment to segregated housing “shall not

ordinarily exceed a period of 30 days[,]” and it should only last “until an alternative means of

separation from likely abusers can be arranged[.]” Id. § 115.43(c). The inmate in segregated

housing should retain “access to programs, privileges, education, and work opportunities to the

extent possible.” Id. § 115.43(b). Every 30 days, an assessment must be made as to the continuing

need for segregated housing. Id. § 115.43(e). Likewise DPSCS policy requires prison staff to

consider “available alternatives” to administrative segregation, give the inmate “the opportunity

to respond to the reasons stated for being in administrative segregation[,]” and to review the

placement with prescribed frequency. 4AC ¶¶ 80–81.

Gilliam was placed in administrative segregation upon transfer to MRDCC in February

2022 and remained in segregation for about three months. Id. ¶¶ 50, 186, 193, 237. During that

time, she permitted to leave her cell for only one hour per day on weekdays and not permitted to

leave her cell at all on weekends. Id. ¶ 50. Whenever allowed to leave her cell, she was restrained

in a three-piece shackle, including when using the shower. Id. ¶¶ 50, 187. During this time, DPSCS

officials denied Gilliam access to programming that would have been available to her if she had

not been in administrative segregation. Id. ¶ 188. DPSCS officials did not solicit or consider

Gilliam’s views regarding her personal safety and housing, did not review her placement in

administrative segregation, and did not consider alternatives to administrative segregation, all of

which Plaintiffs contend violated DPSCS policy. Id. ¶¶ 189–91. Placement in general population

of the men’s prison was eventually offered on the condition that Gilliam sign a document releasing

DPSCS of liability if she were harmed in general population, and she refused to sign the release.

Id. ¶¶ 50, 192–93. Gilliam felt as if she was being punished, although she had “no write-ups or

disciplinary infractions.” Id. ¶ 50. She claims that her period of segregation placed her “at a

substantial risk of serious harm” and resulted in “pain and suffering[;] emotional, psychological,

and physical distress,” including “anxiety and depression”; “violation of dignity”; and other losses.

Id. ¶¶ 206, 238, 240.

The Court finds the foregoing facts sufficient to state a plausible claim in Count III that

Gilliam’s Fourteenth Amendment due process rights were violated during her extended period of

segregation. Drawing reasonable inferences from Plaintiffs’ allegations in their favor, Gilliam’s

several months in administrative segregation objectively placed her at substantial risk of, and

resulted in, serious psychological harm.

In Porter v. Clarke, the Fourth Circuit affirmed summary judgment in favor of a group of

death row inmates on their Eighth Amendment conditions-of-confinement claim. 923 F.3d 348,

368 (4th Cir. 2019). The plaintiffs in Porter were permitted to be out of their cell for only one hour

a day, five days a week, and had limited access to recreation. 923 F.3d at 353–54. The court held

that the challenged conditions of confinement “deprived inmates of the basic human need for

meaningful social interaction and positive environmental stimulation” And “posed a substantial

risk of serious psychological and emotional harm[,]” to which the defendant prison officials were

“deliberately indifferent[.]” Id. at 368 (cleaned up). The court determined that the Virginia

Department of Corrections policy against putting non-death row inmates in solitary confinement

for more than thirty days at a time “constitute[d] unrebutted evidence of State Defendants’

awareness ‘that extended stays in segregation can have harmful emotional and psychological

effects.’” Id. at 361 (citation omitted). See also Incumaa v. Stirling, 791 F.3d 517, 534 (4th Cir.

2015) (“Prolonged solitary confinement exacts a heavy psychological toll that often continues to

plague an inmate’s mind even after [s]he is resocialized.”).

In so holding, the court acknowledged two of its prior decisions that rejected constitutional

challenges to similar conditions of confinement. See id. at 358–59 (examining Sweet v. S.C. Dep’t

of Corr., 529 F.2d 854 (4th Cir. 1975) (en banc), and Mickle v. Moore, 174 F.3d 464 (4th Cir.

1999). The court declined to apply these cases, noting intervening developments in both Supreme

Court precedent and scientific understanding of “the harmful psychological and emotional effects

of prolonged solitary confinement.”13 Id. See also id. at 355 (4th Cir. 2019) (“In recent years,

advances in our understanding of psychology and new empirical methods have allowed researchers

to characterize and quantify the nature and severity of the adverse psychological effects

attributable to prolonged placement of inmates in isolated conditions . . . .”).

Likewise, here, Plaintiffs have alleged serious enough risks and harms associated with

extended periods of segregation to support Gilliam’s claim for unconstitutional conditions of

confinement.

13 Mickle was also factually distinguishable in that the plaintiffs, identified as “Five Percenters,” had

been “placed in segregation based on their in-prison conduct and were removed from segregation if they

renounced their membership with group[,]” Porter, 923 F.3d at 359, which was classified as “a security

threat[,]” Mickle, 174 F.3d at 466. Here, in contrast, according to Plaintiffs, they were not placed in

administrative segregation as punishment for anything they did but were placed in these restrictive

conditions because of their transgender status.

As to Holland’s and Grey’s conditions-of-confinement claims in Count VI, the Court does

not find their relevant allegations adequate to state plausible claims for relief. Holland was placed

in administrative segregation at ECI from late June to early August of 2022. 4AC ¶¶ 68–69, 199.

In administrative segregation, she was only permitted to be out of her cell for as little as 45 minutes

at a time, and only every other day. Id. ¶¶ 69, 200. Grey was placed in administrative segregation

at WCI for one month in response to her complaints about being sexually assaulted, harassed, and

threatened. Id. ¶¶ 55, 194. She was also placed in administrative segregation at Patuxent,

apparently in response to her complaints of harassment and threats by male inmates. Id. ¶¶ 61,

110–12, 196–97.

The Court will assume without deciding that Holland’s and Grey’s periods in

administrative segregation were (like Gilliam’s) sufficient to satisfy the objective component of

their claims. But, because Holland and Grey (unlike Gilliam) assert claims under the Eighth

Amendment standard, they must allege facts to suggest that DPSCS Defendants were subjectively

aware of, but disregarded, the substantial risks associated with the particular circumstances of their

assignments to administrative segregation. See Farmer, 511 U.S. at 834, 837; De’lonta, 708 F.3d

at 525; Porter, 923 F.3d at 361; Short, 87 F.4th at 611. On this point, the Fourth Amended

Complaint falls short. Unlike with Gilliam, Plaintiffs do not plausibly allege that DPSCS violated

its own policies in assigning Holland and Grey to administrative segregation, and they do not

otherwise allege any facts to suggest that the DPSCS officials responsible for these placements

knew about any risks of harm these placements created.

Accordingly, DPSCS Defendants’ motion will be denied as to Gilliam’s individual-

capacity claims in Count III against Housing and Custody Does, and the motion will be granted as

to Holland’s and Grey’s claims in Count VI. Gilliam’s official-capacity claims in Count III will

be dismissed without prejudice for reasons explained in Part IV.B.1 supra. Count VI will be

dismissed without prejudice for failure to state a plausible claim.

C. Count VII: Equal Protection Violations

In Count VII, Plaintiffs allege that DPSCS officials and staff discriminated against them

based on their transgender status and gender identity in violation of their Fourteenth Amendment

rights. 4AC ¶¶ 273–80. Specifically, Plaintiffs allege that DPSCS Defendants housed them with

male inmates, place them at risk of sexual assault, failed to respond appropriately to instances in

which they were assaulted, subjected them to harassment and/or ridicule, denied medical

treatment, placed Gilliam in administrative segregation, and deprived Holland and Grey of certain

job opportunities.

The Equal Protection Clause of the Fourteenth Amendment “provides that no State shall

‘deny to any person within its jurisdiction the equal protection of the laws.’” Fisher v. King, 232

F.3d 391, 399 (4th Cir. 2000) (quoting U.S. Const. amend. XIV, § 1). It prohibits “governmental

decisionmakers from treating differently persons who are in all relevant respects alike[.]”

Fauconier v. Clarke, 966 F.3d 265, 277 (4th Cir. 2020) (quoting Nordlinger v. Hahn, 505 U.S. 1,

10 (1992)). To state an equal protection claim, “a plaintiff must plausibly allege first ‘that [s]he

has been treated differently from others with whom [s]he is similarly situated and that the unequal

treatment was the result of intentional or purposeful discrimination.’” Id. (citation omitted).

Additionally, the plaintiff must “plausibly allege that the disparity was not justified under the

appropriate level of scrutiny.” Id. (citation omitted).

As the Fourth Circuit held in Grimm v. Gloucester County School Board, equal protection

claims based upon transgender status or gender identity warrant intermediate scrutiny—“a form of

heightened scrutiny”—of the challenged governmental action. 972 F.3d 586, 608–13 (4th Cir.

2020). See also Kadel v. Folwell, 100 F.4th 122, 143 (4th Cir. 2024) (en banc) (reiterating Grimm’s

holdings that “gender identity is a protected characteristic under the Equal Protection Clause” and

“discrimination on the basis of gender identity is subject to heightened scrutiny”); B.P.J. v. W. Va.

State Bd. of Educ., 98 F.4th 542, 556 (4th Cir. 2024) (“[A] facial classification based on gender

identity . . . trigger[s] intermediate scrutiny.”) (citing Grimm, 972 F.3d at 610–13); Williams v.

Kincaid, 45 F.4th 759 (4th Cir. 2022), cert. denied, 143 S. Ct. 2414 (2023) (“In part because of the

long history of discrimination against transgender people, we have held that intermediate scrutiny

applies to laws that discriminate against them.”) (citing Grimm, 972 F.3d at 610). Governmental

action that discriminates on the basis of sex, transgender status, or gender identity must be found

unconstitutional “unless [it is] substantially related to a sufficiently important governmental

interest.” Grimm, 972 F.3d at 608 (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,

441 (1985)). “To survive intermediate scrutiny, the state must provide an ‘exceedingly persuasive

justification’ for its classification.” Id. (citation omitted).

When equal protection challenges arise in the prison context, courts must apply rational

basis review so as to give prison officials the space necessary to act in ways “reasonably related to

legitimate penological interests.” Veney v. Wyche, 293 F.3d 726, 732 (4th Cir. 2002) (quoting Shaw

v. Murphy, 532 U.S. 223, 225 (2001)). This principle applies even to conduct that would warrant

higher scrutiny in other contexts, though the court should not ignore “the concerns that [otherwise]

justify application of a heightened standard.” Id. A plaintiff must ultimately “allege facts sufficient

to overcome the presumption of reasonableness applied to prison policies.” Id.

The reasonableness of a challenged prison policy, practice, or action is examined through

factors identified by the Supreme Court in Turner v. Safley, 482 U.S. 78, 89–91 (1989). “Three of

the four Turner factors are relevant to an equal protection claim[:]” (1) whether there is a valid and

rational connection between the action and the legitimate penological interest proffered to justify

it; (2) the impact accommodation of the asserted right will have on other prisoners, correctional

officers, and the allocation of prison resources; and (3) whether there are “ready alternatives . . . .”

Fauconier v. Clarke, 966 F.3d 265, 277 (4th Cir. 2020) (cleaned up); see also Firewalker-Fields

v. Lee, 58 F.4th 104, 115 (4th Cir. 2023) (applying Turner to detention center policies).

Plaintiffs state plausible equal protection claims premised on harassment and ridicule by

DPSCS staff and housing placements with male inmates. Plaintiffs’ placements with male inmates

are plausibly alleged to have put them at risk of sexual assault, and resulted in sexual harassment

and sexual assaults against Gilliam and Grey, as well as an attempted sexual assault against

Holland. Furthermore, some DPSCS Defendants were aware of the sexual harassment, assaults,

and threats Plaintiffs suffered from male inmates but “looked the other way” or were otherwise

dismissive when Plaintiffs complained about it. 4AC ¶¶ 59, 136–37, 142, 167. Additionally,

DPSCS staff are alleged to have themselves subjected Plaintiffs to various forms of harassment,

ridicule, and humiliation based on their transgender status. These actions by DPSCS Defendants

include an attempt to expose Holland to male inmates while she was showering, refusing to allow

Gilliam to shower separately from male inmates, forcing Grey to come out as gender dysphoric to

her housing unit at WCI, and leveling “slurs” at, and “routinely misgender[ing,]” Holland and

Grey. Id. ¶¶ 53, 109, 165–66, 273–78. Plaintiffs allege sufficient facts to support a reasonable

inference that, in housing Plaintiffs with male prisoners and subjecting them to sex-based

harassment and the risk of sexual assault, DPSCS Defendants have intentionally treated Plaintiffs,

as transgender women, differently than they have treated similarly situated cisgender female

prisoners.

No legitimate penological interest in the foregoing transgender-based classifications and

disparate treatment is apparent from the face of the Fourth Amended Complaint. To the contrary,

DPSCS Defendants violated departmental policies by making Plaintiffs’ housing placements

without “seriously considering [each Plaintiff’s] opinion regarding [her] safety and [each

Plaintiff’s] biological gender presentation and appearance . . . .” 4AC ¶¶ 72–73, 106, 113, 117; see

also DPSCS Gender Dysphoria Policy, supra, §§ .05(C)(4), .05(J)(1). DPSCS policy and federal

prison regulations also specifically required DPSCS Defendants to determine whether Plaintiffs’

housing placements would ensure their health and safety, to consider their risk of sexual

victimization in making housing decisions, and to allow them to shower separately from other

inmates. Id. ¶¶ 72–73, 76, 83–84.14

Additionally, DPSCS Defendants placed Gilliam in administrative segregation for a

prolonged period of time based on her transgender status, which plausibly exacted psychological

injury and placed her at risk of further injury. Id. ¶¶ 186, 201–06, 275–76. DPSCS Defendants

violated departmental policies by failing to make a periodic review of her placement in

administrative segregation and denying her an opportunity to respond to reasons for her placement.

14 Courts across the country have addressed the issue of prison housing of transgender inmates, though

there is little uniformity to be found among their decisions. See Griffith v. El Paso Cnty., No. 21-CV-00387-

CMA-NRN, 2023 WL 2242503, *11 (D. Colo. Feb. 27, 2023), report and recommendation adopted, No.

21-CV-00387-CMA-NRN, 2023 WL 3099625 (D. Colo. Mar. 27, 2023) (granting prison officials’ motion

to dismiss because they had a rational basis for housing transgender women with male inmates, while noting

that this policy would likely fail intermediate review); Sabbats v. Clarke, No. 7:21CV00198-JPJ, 2022 WL

4134771, at *9 n.9 (W.D. Va. Sept. 12, 2022) (“If I were to apply the intermediate scrutiny standard to the

equal protection claim [for housing a transgender woman prisoner with male inmates] . . . I would [still]

find for the [defendant prison officials.]”) (granting summary judgment); Tay, 457 F. Supp. 3d at 682

(“Based on the evidence, [the] decision to house [the transgender woman plaintiff] in a men’s facility is not

based on any legitimate penological purpose.”) (granting in part preliminary injunction); Doe v. Mass. Dep’t

of Corr., No. CV 17-12255-RGS, 2018 WL 2994403, at *10 (D. Mass. June 14, 2018) (policy of housing

transgender women with male inmates does not pass intermediate scrutiny at the motion to dismiss stage).

Although the Griffith decision is most apposite, a key distinction in the instant case is that DPSCS

Defendants’ housing placements are alleged in the Fourth Amended Complaint to contravene DPSCS’s

own policies.

Id. ¶¶ 79–82, 190. The Court recognizes DPSCS’s interest in protecting Plaintiffs—as feminine-

presenting transgender women—from sexual assault and harassment. The need to protect Gilliam

from these harms may have served as a legitimate reason for placing her in administrative

segregation rather than in general population with male prisoners. But, according to Plaintiffs,

DPSCS Defendants violated departmental policy by failing to consider available alternatives to

administrative segregation for Gilliam—such as placement at a women’s facility—that may have

avoided the risks associated with both an extended period of isolation and placement among male

prisoners. Id. ¶¶ 191–92.

Plaintiffs also assert equal protection claims based DPSCS denying Holland and Grey

certain job opportunities. Id. ¶¶ 277–78. After coming out as transgender at WCI, Grey was

removed from her position as an education aide, a job she held for three years, because, she was

told, she would be “too distracting for the male students” and based on concerns that, “as a

transgender woman[,] she would be sexually promiscuous on the job.” Id. ¶¶ 60, 207–09. Holland

similarly alleges that she interviewed for a job as a clerk in the metal shop at MCIH, a position for

which she was qualified, but she was denied the position because, she was told, “transgender

community will be sexually promiscuous in situations where the security is not as high[.]” Id. ¶¶

210–12. These allegations suffice to support reasonable inferences that Holland’s and Grey’s job

opportunities were restricted in ways that DPSCS Defendants did not apply to non-transgender

inmates. Furthermore, the comments made to Holland and Grey about the reasons they were denied

positions for which they were qualified reflect discriminatory animus toward transgender inmates.

And there is no indication that Holland and Grey were offered alternative work assignments.

At this early stage of the litigation, and without the benefit of an evidentiary record, the

Court cannot make findings that bear on all of the Turner factors relevant to all of Plaintiffs’ equal

protection claims. Instead, it must assume the facts alleged in the Fourth Amended Complaint to

be true and draw all reasonable inferences in Plaintiffs’ favor. See Iqbal, 556 U.S. at 678; King,

825 F.3d at 212. Furthermore, the Court must give due consideration to the equal protection

concerns that, outside the prison context, would warrant application of intermediate scrutiny. See

Veney, 293 F.3d at 732. In doing so, the Court finds that Plaintiffs have alleged enough facts to

suggest that DPSCS Defendants’ transgender-based disparate treatment of each Plaintiff was not

related to legitimate penological interests and was, in some instances, violative of prison policies

and regulations. In short, Plaintiffs allegations suggest that DPSCS Defendants lacked a rational

basis for their alleged discriminatory conduct. Accordingly, DPSCS Defendants’ motion will be

denied as to Plaintiffs’ claims in Count VII against Housing and Custody Does.

The Court notes, however, that Plaintiffs assert equal protection claims against various

named DPSCS officials in their individual capacity without alleging any facts to suggest their

personal involvement in any equal protection violations. For this reason, Count VII will be

dismissed as to defendants Adisa-Thomas, Matt, Baucom, Wolinski, Nwosu, Smith, Werner,

Bailey, Mobley, Partlow, Gallagher,15 Johnson, Stewart, Weber, and Peterson.

Plaintiffs also assert equal protection claims against Health Care Does and others based on

the denial of medical treatment. As examined in Part IV.B.1 supra, Plaintiffs allege that each of

them was either denied prescribed hormone therapy or that such treatment was delayed at certain

times during their incarceration. But they do not allege any facts to suggest that similarly situated

non-transgender inmates were treated differently. Plaintiffs allege that they were deprived of

medical treatment “based on [their] gender identity[,]” 4AC ¶¶ 273, 277, 278, but offer no factual

15 Plaintiffs allege that Gallagher removed certain feminine and gender-affirming products from the

commissary at ECI, making them unavailable to “transgender prisoners like Ms. Holland . . . , thereby

exacerbating their gender dysphoria.” 4AC ¶¶ 168–69. But they do not allege any facts to suggest that

similarly situated cisgender female prisoners were not similarly deprived of such products.

support for this conclusory allegation. Accordingly, their equal protection claims based on denial

of medical treatment are not plausible and must be dismissed.

In sum, DPSCS Defendants’ motion will be granted in part and denied in part as to Count

VII. This count will proceed against Housing and Custody Does but will be dismissed as to the

other defendants.

D. Counts VIII and IX: Disability Discrimination

In Counts VIII and IX, Plaintiffs allege that DPSCS and department officials and staff

subjected them to discrimination on the basis of disability in violation of Title II of the ADA and

Section 504 of the RA. 4AC ¶¶ 282–333. The allegedly discriminatory conduct included subjecting

Plaintiffs to harassment and ridicule, failing to accommodate their gender dysphoria, placing them

in administrative segregation, and denying them access certain services, programs, and activities

at DPSCS facilities, including medical treatment, safe housing, and certain job opportunities. Id.

In these disability discrimination counts, DPSCS Defendants are sued in their official capacities.16

In support of their motion, DPSCS Defendants argue that they are entitled to Eleventh

Amendment immunity17 from these counts because, in the prison context, Congress has not

abrogated sovereign immunity for ADA Title II claims based upon the discriminatory conduct

alleged in this case. ECF 132-2 at 14–20. DPSCS Defendants further contend that Plaintiffs have

failed to state a plausible constitutional violation in their disability discrimination counts and failed

a state a plausible claim for relief under ADA Title II and Section 504 of the RA. Id. at 15–19, 36–

37.

16 See Barnes v. Young, 565 F. App’x 272, 273 (4th Cir. 2014) (ADA Title II does not allow

individual-capacity suits); Garcia v. State Univ. Of N.Y. Health Scis. Ctr., 280 F.3d 98, 107 (2d Cir. 2001)

(individual-capacity suits against state officials cannot be brought under ADA Title II or RA Section 504).

17 As explained in Part IV.B.1 supra, “[t]he Eleventh Amendment[ ] limits the Article III jurisdiction

of the federal courts to hear cases against States and state officers acting in their official capacities.”

Kitchen, 286 F.3d at 183 (footnote omitted).

1. Abrogation of State Sovereign Immunity

Congress is empowered by § 5 of the Fourteenth Amendment to abrogate state sovereign

immunity, so long as the means are congruent and proportional to the injuries that Congress intends

to prevent or remedy. Allen v. Cooper, 589 U.S. 248, 260–61 (2020) (citing City of Boerne v.

Flores, 521 U.S. 507, 520 (1997)). Where a state has not consented to suit, Eleventh Amendment

immunity may only be abrogated by a clear legislative statement (1) indicating Congress’s intent

to abrogate the immunity and (2) made pursuant to a valid exercise of its power. Id. at 255; see

also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55–56 (1996) (citations omitted).

Title II of the ADA provides that “[n]o qualified individual with a disability shall, by reason

of such disability, be excluded from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42

U.S.C. § 12132. “Title II authorizes suits by private citizens for money damages against public

entities that violate § 12132.” United States v. Georgia, 546 U.S. 151, 154 (2006).

“In enacting Title II of the ADA, Congress made it specifically applicable to the States and

state entities . . . .” Fauconier v. Clarke, 966 F.3d 265, 280 (4th Cir. 2020). Although “the States

are generally immune from private damage actions by reason of the Eleventh Amendment, the

Supreme Court in United States v. Georgia held that ‘insofar as Title II [of the ADA] creates a

private cause of action for damages against the States for conduct that actually violates

the Fourteenth Amendment, Title II validly abrogates state sovereign immunity.’” Id. (quoting

Georgia, 546 U.S. at 159). Georgia directs lower courts, when faced with Title II claims against a

state entity, to determine “on a claim-by-claim basis, (1) which aspects of the State’s alleged

conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth

Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth

Amendment, whether Congress’s purported abrogation of sovereign immunity as to that class of

conduct is nevertheless valid.” 546 U.S. at 159.

Here, Plaintiffs have alleged violations of ADA Title II that are also plausible violations of

the Fourteenth Amendment. As explained in Part IV.B.1 supra, Plaintiffs have stated plausible

claims for various constitutional violations based on DPSCS Defendants making housing

placements that put Plaintiffs’ health and safety at risk, as well as denying Plaintiffs certain medical

treatment and job opportunities. Because the conduct alleged to violate ADA Title II largely

overlaps and corresponds with conduct alleged to violate the Fourteenth Amendment, the Court

finds that ADA Title II abrogates DPSCS Defendants’ immunity to Plaintiffs’ disability

discrimination claims. At this early stage of the litigation, the Court need not proceed to the third

step of the Georgia test.

2. Disability Discrimination (Counts VIII and IX)

DPSCS Defendants argue that Counts VIII and IX should be dismissed because Plaintiffs

fail to state plausible claims for disability discrimination under Title II of the ADA and Section

504 of the RA. ECF 132-2 at 15–18, 36–37.

As noted supra, ADA Title II forbids a public entity from discriminating against qualified

persons with disabilities, such as by excluding them from participation in the public entity’s

services, programs, and activities, or denying them the benefits of such services, programs, and

activities. See 42 U.S.C. § 12132. The public entity is required to make “‘reasonable modifications’

to its ‘policies, practices, or procedures’ when necessary to avoid such discrimination.” Fry v.

Napoleon Cmty. Sch., 580 U.S. 154, 159–60 (2017) (quoting 28 C.F.R. § 35.130(b)(7) (2016));

see also Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 488 (4th Cir.

2005) (“Title II . . . imposes an affirmative obligation to make ‘reasonable modifications to rules,

policies, or practices, the removal of architectural, communication, or transportation barriers, or

the provision of auxiliary aids and services’ to enable disabled persons to receive services or

participate in programs or activities.”) (quoting 42 U.S.C. § 12131(2)). “Reasonable

modifications” or “reasonable accommodations” are those “that are ‘necessary’ to provide a

disabled individual with ‘full and equal enjoyment’ of the facility’s services.” Canter v. Maryland,

Civ. No. ELH-22-2267, 2023 WL 5804285, at *19 (D. Md. Sept. 6, 2023) (quoting Halpern v.

Wake Forest Univ. Health Scis., 669 F.3d 454, 461 (4th Cir. 2012)). An accommodation is not

reasonable when it “either imposes undue financial and administrative burdens . . . or requires a

fundamental alteration in the nature of the program.” Halpern, 669 F.3d at 464 (quoting Sch. Bd.

of Nassau Cnty. v. Arline, 480 U.S. 273, 287 n.17 (1987)).

To prevail on a claim of discrimination under ADA Title II, a plaintiff must show that she:

(1) has a disability or is regarded as having a disability; (2) is qualified to participate in or to receive

the benefits of a public service, program, or activity; and (3) was denied such participation or

benefits, “or otherwise discriminated against,” based on her disability. Nat’l Fed’n of the Blind v.

Lamone, 813 F.3d 494, 502–03 (4th Cir. 2016); see also Fauconier, 966 F.3d at 276. To establish

a disability, a plaintiff must show “(1) that [she] has a physical or mental impairment, (2) that this

impairment implicates at least one major life activity, and (3) that the limitation is substantial.”

Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 254 (4th Cir. 2006) (citing 42 U.S.C. §

12102(2)(A)).

Section 504 of the RA provides that “[n]o otherwise qualified individual with a

disability . . . shall, solely by reason of his or her disability, be excluded from participation in, be

denied the benefits of, or be subjected to discrimination under any program or activity receiving

Federal financial assistance.” 29 U.S.C. § 794(a). Courts in the Fourth Circuit may analyze ADA

Title II and RA Section 504 claims together, given their substantial similarity. Doe v. Univ. of Md.

Med. Sys. Corp., 50 F.3d 1261, 1267 n.9 (4th Cir. 1995).

ADA Title II and RA Section 504 claims may be pursued on three distinct grounds: “(1)

intentional discrimination or disparate treatment; (2) disparate impact; and (3) failure to make

reasonable accommodations.” Brown v. DPSCS, 383 F. Supp. 3d 519, 551–52 (D. Md. 2019)

(quoting A Helping Hand, LLC v. Balt. Cnty., 515 F.3d 356, 362 (4th Cir. 2008)).

Plaintiffs allege that gender dysphoria involves a substantial impairment or limitation “in

social, occupational, and other important areas of functioning[,]” implicating major life activities,

4AC ¶¶ 3–6, and therefore constitutes a disability under the ADA. See Williams, 45 F.4th at 769–

74 (holding that plaintiff alleged sufficient facts to support inference that gender dysphoria is

protected by the ADA).

DPSCS, as a state department of correction, “fall[s] squarely within [ADA Title II’s]

statutory definition of ‘public entity,’” Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210

(1998), and, because it “receives federal funding[,]” 4AC ¶ 317, it is also subject to the

anti-discrimination provisions of RA Section 504. Plaintiffs allege that they qualify for certain

services and programs available to Maryland prison inmates, including safe housing and facilities

for recreation and showering, educational programs, and certain job opportunities. 4AC ¶¶ 282–

308. Plaintiffs further allege that they were denied access to such services and programs based on

their transgender status, id., which was connected to their gender dysphoria, id. ¶¶ 1, 6. See also

Kadel, 100 F.4th at 149 (“[G]ender dysphoria, a diagnosis inextricable from transgender status, is

a proxy for transgender identity.”). Specifically, as recounted in Part IV.C supra, Holland and

Grey were denied certain jobs for which they were qualified, 4AC ¶¶ 210–12, 277–78; Gilliam

was placed in administrative segregation for an extended period of time, id. ¶ 186; and all three

Plaintiffs were subjected to abuse, harassment, and ridicule, ¶¶ 50, 53, 65; all on account of their

transgender status and, by extension, gender dysphoria. See Kadel, 100 F.4th at 146 (characterizing

“gender dysphoria and transgender status” as “inextricable categories”). While placed in

administrative segregation, Gilliam was subjected to isolation and attendant injuries and risks to

her psychological well-being, and was denied access to certain jail programs. 4AC ¶¶ 185–293.

Plaintiffs further allege that DPSCS Defendants denied them reasonable modification of

department practices to accommodate their gender dysphoria, such being allowed to shower and

go to recreation separately from male inmates, which placed them at risk of further sexual abuse

and harassment. Id. ¶¶ 49, 130–31, 191, 247, 293, 298–99, 305, 323, 330. The Court finds these

facts sufficient to state plausible ADA Title II and RA Section 504 violations.

However, insofar, as Plaintiffs seek to assert disability discrimination claims based solely

on the denial and delay of treatment for their gender dysphoria, see 4AC ¶ 296, the Court finds

their allegations insufficient to state plausible claims. Title II “would not be violated by a prison’s

simply failing to attend to the medical needs of its disabled prisoners[,] where [n]o discrimination

is alleged[.]” Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996), cited in Spencer v. Easter, 109

F. App’x 571, 573 (4th Cir. 2004), and Miller v. Hinton, 288 F. App’x 901, 903 (4th Cir. 2008);

see also Baxley v. Jividen, 508 F. Supp. 3d 28, 60 (S.D.W.Va. 2020) (“[C]ourts have repeatedly

found that the ‘a prisoner may not state a claim under the ADA for a lack of medical treatment.’”)

(quoting Mondowney v. Balt. Cty. Det. Ctr., Civ. No. ELH-17-1538, 2019 WL 3239003, at *21

(D. Md. July 18, 2019) (citing cases)). Here, Plaintiffs do not allege that they were denied medical

treatment for gender dysphoria because they have gender dysphoria. To the extent Plaintiffs seek

to assert disability discrimination claims based on medical providers and staff denying or delaying

treatment, the Court finds their allegations inadequate to support such claims.

DPSCS Defendants point out that a stricter causation standard applies to claims under RA

Section 504 than ADA Title II claims and argue that Plaintiffs’ Section 504 claims should be

dismissed for insufficient pleading of causation. ECF 132-2 at 36–37. DPSCS Defendants are

correct that, while “[t]he ADA and Rehabilitation Act generally are construed to impose the same

requirements,” their causation standards are “significantly dissimilar.” Constantine v. Rectors &

Visitors of George Mason Univ., 411 F.3d 474, 498 n.17 (4th Cir. 2005) (quoting Baird ex rel.

Baird v. Rose, 192 F.3d 462, 469 (4th Cir. 1999)). While an ADA Title II claim requires only proof

that “disability ‘played a motivating role’ in the adverse action,” a claim under RA Section 504 of

the Rehabilitation Act requires a showing that “the defendants’ discriminatory conduct was ‘solely

by reason’ of the plaintiff’s disability.” Id. (quoting Baird, 192 F.3d at 469–70). Still, the Court

finds Plaintiffs’ allegations adequate to render plausible Plaintiffs’ claims, for instance, that they

were subjected to harassment and ridicule, denied certain job opportunities, and placed in

administrative segregation and thereby deprived of certain programming and medical care, solely

because they are transgender and gender dysphoric.

Accordingly, DPSCS Defendants’ motion will be denied as to Counts VIII and XI. These

disability discrimination claims will proceed, except insofar as they are based on any denial or

delay in medical treatment. Plaintiffs’ disability discrimination claims based on inadequate

medical treatment shall be dismissed with prejudice. In all other respects, Counts VIII and XI will

proceed.

E. Counts X through XII: Common Law Torts

In Counts X, XI, and XII, Plaintiffs assert Maryland common-law tort claims for

negligence and intentional infliction of emotional distress (“IIED”) against DPSCS Defendants.

4AC ¶¶ 334–53. Count X asserts negligence claims against DPSCS Defendants in their official

capacities, Count XI asserts negligence claims against them in their individual capacities, and

Count XII asserts IIED claims against them in their individual capacities. DPSCS Defendants

argue that these counts should be dismissed because they are entitled to sovereign immunity that

is not waived for these claims in federal court, and Plaintiffs do not plausibly allege gross

negligence or malice. ECF 132-2 at 37–39. The Court will address each of these arguments in turn.

1. Sovereign Immunity from Tort Claims in Federal Court

A state’s sovereign immunity “bars all claims by private citizens against state governments

and their agencies, except where Congress has validly abrogated that immunity or the state has

waived it.” Passaro v. Virginia, 935 F.3d 243, 247 (4th Cir. 2019); see also Virginia Off. for Prot.

& Advoc. v. Stewart, 563 U.S. 247, 253 (2011) (“Sovereign immunity is the privilege of the

sovereign not to be sued without its consent.”). It operates as “a jurisdictional bar.” Pevia v. Hogan,

443 F. Supp. 3d 612, 631 (D. Md. 2020). “[A] court finding that a party is entitled to sovereign

immunity must dismiss the action for lack of subject-matter jurisdiction.” Id. (quoting

Cunningham v. Gen. Dynamics Info. Tech., Inc., 888 F.3d 640, 649 (4th Cir. 2018)).

The question of whether Maryland has waived its sovereign immunity “by a state

constitutional provision or statute is a matter of state law, ‘as to which the decision of the [state’s

highest court] is controlling.’” Lee-Thomas v. Prince George’s Cnty. Pub. Sch., 666 F.3d 244, 249

(4th Cir. 2012) (quoting Palmer v. Ohio, 248 U.S. 32, 34 (1918)). Maryland’s highest court has

“adopted a two-part test to determine whether sovereign immunity applies in a specific case:” (1)

whether the entity invoking sovereign immunity qualifies; and (2) whether the state legislature

waived the immunity. Dennard v. Towson Univ., 62 F. Supp. 3d 446, 450 (D. Md. 2014) (citing

Stern v. Bd. of Regents, Univ. Sys. of Maryland, 846 A.2d 996, 1001 (Md. 2004)). The Maryland

Supreme Court has “strictly construed such waivers in favor of the sovereign.” Bd. of Educ. of

Baltimore Cnty. v. Zimmer-Rubert, 973 A.2d 233, 240 (Md. 2009) (citations omitted).

DPSCS, as an arm of the state, and department officials, in their official capacities, are

covered by the state’s sovereign immunity. See Md. Code Ann., Corr. Servs. § 2-101; Clark v. Md.

Dep’t of Pub. Safety & Corr. Servs., 316 F. App’x 279, 282 (4th Cir. 2009) (“[T]he Maryland

Department of Public Safety and Correctional Services is undoubtedly an arm of the state.”). The

Maryland Tort Claims Act (“MTCA”) states that, subject to certain statutory exclusions and

limitations, “the immunity of the State and of its units is waived as to a tort action, in a court of

the State.” Md. Code Ann., State Gov’t § 12-104(a)(1). But the MTCA does not waive the state’s

immunity from tort suits in federal court. See, e.g., Davenport v. Maryland, 38 F. Supp. 3d 679,

691 (D. Md. 2014) (citing Md. Code Ann., State Gov’t § 12-103(2)); Sanders v. Callender, Civ.

No. DKC 17-1721, 2018 WL 337756, at *8 (D. Md. Jan. 9, 2018). Accordingly, Count X is subject

to dismissal. DPSCS Defendants’ motion shall be granted as to Count X.

The MTCA expressly provides that Maryland state employees are immune from liability

in tort for tortious acts or omissions that are made within the scope of their employment, unless

made with malice or gross negligence. Md. Code Ann., State Gov’t § 12-105 (incorporating Md.

Code Ann., Cts. & Jud. Proc. § 5-522(b)). “If . . . the State employee has acted with malice or gross

negligence, or the State employee has acted outside the scope of his or her employment, the State

is immune from suit and the injured party may only bring a viable tort claim against the State

employee.” Ford v. Baltimore City Sheriff’s Off., 814 A.2d 127, 134 (Md. Ct. Spec. App. 2002)

(citation omitted). “[S]tate personnel are not immune from suit and liability in tort when the

plaintiff’s complaint sufficiently alleges malice or gross negligence.” Barbre v. Pope, 935 A.2d

699, 714 (Md. 2007).

In sum, although DPSCS Defendants are immune from having Plaintiffs’ official-capacity

negligence claims in Count X adjudicated in federal court, they are not immune from negligence

claims brought against them in their individual capacities insofar as the alleged negligent acts or

omissions were made with malice or gross negligence.18 DPSCS Defendants argue that Plaintiffs

do not plausibly allege malice or gross negligence and, therefore, Plaintiffs’ tort claims should be

dismissed. The Court will address the sufficiency of Plaintiffs’ pleading of individual-capacity tort

claims below.

2. Negligence (Count XI)

In Count XI, each Plaintiff asserts negligence claims against certain DPSCS officials and

staff in their individual capacities. 4AC ¶¶ 339–46. Gilliam’s negligence claims are asserted

against Baucom, Wolinski, Nwosu, and Housing, Health Care, and Custody Does. Holland’s

negligence claims are asserted against Scruggs, Morgan, Gardner, Smith, Werner, and Bailey.

Grey’s negligence claims are asserted against Scruggs, Morgan, Gardner, Johnson, Stewart, and

Weber. Plaintiffs allege that these defendants failed to comply with professional standards of care

and departmental policies in various ways that resulted in injuries. Id.

To establish a negligence claim under Maryland law, a plaintiff must set forth “(1) a duty

or obligation under which the defendant is to protect the plaintiff from injury, (2) breach of that

duty, and (3) actual loss or injury to the plaintiff proximately resulting from the breach.” Bobo v.

State, 346 Md. 706, 714 (Md. 1997)).

Gross negligence is “an intentional failure to perform a manifest duty in reckless disregard

of the consequences as affecting the life or property of another,[ ] and also implies a thoughtless

disregard of the consequences without the exertion of any effort to avoid them.” Newell v. Runnels,

18 Plaintiffs allege that “Defendants’ negligent conduct was committed within the scope of their

employment.” 4AC ¶¶ 337, 342.

967 A.2d 729, 764 (Md. 2009) (citation and footnote omitted). “A government official commits

gross negligence ‘only when he or she inflicts injury intentionally or is so utterly indifferent to the

rights of others that he or she acts as if such rights did not exist.’” Nero v. Mosby, 890 F.3d 106,

128 (4th Cir. 2018) (quoting Cooper v. Rodriguez, 118 A.3d 829, 846 (Md. 2015)).

For purposes of the MTCA, “malice is ‘conduct characterized by evil or wrongful motive,

intent to injure, knowing and deliberate wrongdoing, ill-will or fraud.’” Nero, 890 F.3d at 127

(quoting Barbre, 935 A.2d at 714). “To establish malice, a plaintiff must show that the government

official ‘intentionally performed an act without legal justification or excuse, but with an evil or

rancorous motive influenced by hate, the purpose being to deliberately and willfully injure the

plaintiff.’” Id. (quoting Bord v. Baltimore County, 104 A.3d 948, 964 (Md. Ct. Spec. App. 2014)).

Citing WPATH’s Standards of Care and DPSCS policies, see 4AC ¶¶ 86–89, Plaintiffs

plausibly allege that DPSCS Defendants had a duty to provide reasonable health care and a duty

to take reasonable measures to protect them from foreseeable harms, including harm by other

inmates. See Makdessi v. Fields, 789 F.3d 126, 132 (4th Cir. 2015) (“Prison officials

are . . . obligated to take reasonable measures to guarantee inmate safety.”); State v. Johnson, 670

A.2d 1012, 1017 (Md. Ct. Spec. App. 1996) (holding that “the State owes a duty to provide

reasonable health care to its prisoners” and that a negligence action can be maintained based on an

injurious breach of that duty). Plaintiffs also plausibly allege that DPSCS Defendants breached

these duties in various ways, such as improperly housing them with male inmates, which resulted

in sexual assaults and injuries. Plaintiffs additionally allege sufficient facts to support a reasonable

inference that at least some DPSCS Defendants acted with gross negligence or malice under

Maryland law. For instance, Plaintiffs allege that Gilliam was subjected to harassment and ridicule

by prison staff. Id. ¶¶ 133, 273. Drawing reasonable inferences in Plaintiffs’ favor, such allegations

plausibly reflect thoughtless disregard for the consequences of the defendants’ breach of duties

owed to Gilliam and indifference to her rights.

The Court notes, however, that Plaintiffs do not allege any conduct by Scruggs, Morgan,

Gardner, Smith, Werner, Bailey, Johnson, Stewart Weber, Baucom, Wolinski, Nwosu, or any

Health Care Doe to support a reasonable inference that any of them did anything negligent that

amounted to gross negligence or was done with malice.19 Plaintiffs’ claims against these state

employees cannot be sustained on generalized and unsupported allegations that they “acted with

actual malice, motivated by hate,” and their “treatment of Plaintiffs evinced a reckless disregard

for their lives and well-being, an utter indifference to their rights, and ill will towards them.” 4AC

¶¶ 344, 346. See Barbre, 935 A.2d at 717 (“[C]onclusory allegations of gross negligence [a]re not

enough to bring the claim outside the immunity and non-liability provisions of the MTCA.”).

Plaintiffs’ individual-capacity negligence claims against these defendants are therefore subject to

dismissal.

For the foregoing reasons, DPSCS Defendants’ motion shall be granted in part and denied

in part with respect to Count XI. As to the individual-capacity negligence claims in Count XI,

Gilliam’s claims shall proceed against Housing and Custody Does. Plaintiffs’ remaining claims in

Count XI, including all of Holland’s and Grey’s individual-capacity negligence claims, shall be

19 Plaintiffs allege that, when Grey reported sexual harassment and threats by male inmates, Stewart

blamed Grey’s feminine appearance and threatened to assign her to a cell with a male inmate and to remove

her from her educational program. 4AC ¶¶ 110–12. But they do not allege any negligent conduct attributable

to Stewart.

Plaintiffs allege in Count X that “Defendants” failed to train correctional officers in “how to

appropriately work with inmates with gender dysphoria[,]” id. ¶¶ 302–04, but they do not identify any

training failure specific to any of the named defendants and do not plausibly allege any gross negligence or

malice in any such training failure.

dismissed without prejudice. Count X shall also be dismissed without prejudice, for reasons

explained in Part IV.E.1 supra.

3. Intentional Infliction of Emotional Distress

In Count XII, Plaintiffs assert claims for intentional infliction of emotional distress (“IIED”)

under Maryland common law against certain DPSCS officials and staff in their individual

capacities. 4AC ¶¶ 347–53. These claims are based on Plaintiffs’ allegations that these defendants

intentionally failed to provide adequate medical care, failed to protect them from sexual abuse and

the risk of sexual abuse by male inmates, subjected them to ridicule and harassment, and

segregated them, all in violation of DPSCS policy. Id.

An IIED claim under Maryland law requires the plaintiff to show that (1) the defendant

intentionally or recklessly engaged in (2) extreme and outrageous conduct (3) that caused (4)

severe emotional distress. See Ford v. Douglas, 799 A.2d 448, 451 (Md. Ct. Spec. App. 2002)

(citing Harris v. Jones, 380 A.2d 611 (Md. 1977)); Valderrama v. Honeywell Tech. Sols., Inc., 473

F. Supp. 2d 658, 666 n.20 (D. Md. 2007) (citation omitted). “To meet the ‘intentional or reckless’

criterion of the first element, the plaintiff must allege and prove that the defendant either desired

to inflict severe emotional distress, knew that such distress was certain or substantially certain to

result from his conduct, or acted recklessly in deliberate disregard of a high degree of probability

that the emotional distress will follow.” Foor v. Juv. Servs. Admin., 552 A.2d 947, 959 (Md. Ct.

Spec. App. 1989), cert. denied, 558 A.2d 1206 (Md. 1989) (citations omitted). The defendant’s

conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized

community.” Harris, 380 A.2d at 614 (Md. 1977); see also Figueiredo-Torres v. Nickel, 584 A.2d

69, 75 (Md. 1991) (finding IIED where a psychiatrist was sleeping with his patient’s wife while

serving as the pair’s marriage counselor). This is an exceedingly difficult standard to meet, making

IIED “rarely viable” in Maryland. Farasat v. Paulikas, 32 F. Supp. 2d 244, 247 (D. Md. 1997).

Furthermore, where the alleged tortfeasors are Maryland state employees acting within the

scope of their employment, the plaintiff must show that they acted with gross negligence or malice

to overcome immunity under the MTCA. See Okwa v. Harper, 757 A.2d 118, 128 (Md. 2000)

(“State personnel . . . are immune from suit in courts of the State and from liability in tort for a

tortious act or omission that is within the scope of the public duties of the State personnel and is

made without malice or gross negligence.”) (quoting Md. Code Ann., Cts. & Jud. Proc. § 5-522(b);

see also Md. Code Ann., State Gov’t § 12-105 (incorporating Cts. & Jud. Proc. § 5-522(b)). As

explained in Part IV.E.2 supra, in this context, “malice” entails “conduct characterized by evil or

wrongful motive, intent to injure, knowing and deliberate wrongdoing, ill-will or fraud.” Nero,

890 F.3d at 127 (quoting Barbre, 935 A.2d at 714). To establish that a government official acted

with malice, the plaintiff must show an intentional act performed “without legal justification or

excuse, but with an evil or rancorous motive influenced by hate, the purpose being to deliberately

and willfully injure the plaintiff.” Id. (quoting Bord, 104 A.3d at 964).

Plaintiffs’ allegations fall short of specifying conduct by any DPSCS Defendant that gives

rise to a plausible IIED claim under Maryland law. Plaintiffs allege acts by the defendants that

might be fairly characterized as outrageous and indecent, such as a correctional officer attempting

to expose Holland to male inmates while she was showering. 4AC ¶ 166. But even assuming that

the officer acted maliciously and with the intention of inflicting severe emotional distress,

Plaintiffs do not allege that Holland was actually exposed or that she suffered severe emotional

distress as a result of this incident. Ultimately, Plaintiffs do not identify any specific malicious,

extreme, and outrageous conduct by a DPSCS Defendant that either intentionally or recklessly

caused actual, severe emotional distress.

The Court infers that severe emotional distress resulted from the sexual assaults that

Gilliam and Grey suffered while placed with male inmates. But Plaintiffs do not allege facts to

render plausible any claim that Plaintiffs were placed with male inmates maliciously based on an

evil motive, any ill will toward them, or an intent that they be assaulted.

Plaintiffs allege that they all suffered emotional injuries, including depression and anxiety,

from extended periods in administrative segregation and delays in hormone treatment. 4AC ¶¶ 56,

95, 206, 232, 259. Even assuming these emotional injuries were severe, Plaintiffs do not present

enough facts to suggest that their hormone treatment was delayed with an evil or wrongful motive,

a desire to inflict severe emotional distress, knowledge that severe emotional distress was certain

to occur, or reckless disregard of a high probability that it would occur. Plaintiffs also fall short of

alleging that their periods in administrative segregation were prolonged maliciously.

Although Plaintiffs allege on information and belief that Grey was placed in administrative

segregation at Patuxent in retaliation for filing complaints and contacting an attorney to challenge

DPSCS’s conduct, 4AC ¶¶ 61, 196–97, they offer no facts to raise this allegation of retaliatory

motive above the speculative level. To the contrary, Plaintiffs present other facts that suggest that

Grey was placed in administrative segregation based on complaints that she had been sexually

harassed and propositioned by a male inmate at Patuxent. Id. ¶¶ 150–53. Indeed, Grey was “told

that she [was] in administrative segregation at Patuxent for her own protection.” Id. ¶ 198. Grey’s

IIED claim requires both malice and either a desire to inflict severe emotional distress or

knowledge that severe emotional distress was certain to result from the placement. Plaintiffs’

allegations do not satisfy these requirements.

Accordingly, the Court finds that Plaintiffs’ IIED claims fail and shall be dismissed without

prejudice. DPSCS Defendants’ motion will be granted as to Count XII.

V. CONCLUSION

For the reasons stated herein, Defendants’ motion to dismiss will be granted in part and

denied in part.

Several of Plaintiffs’ § 1983 constitutional claims will be dismissed. Gilliam’s and

Holland’s official-capacity claims in Counts I, II, III, IV, and V will be dismissed without

prejudice. Regarding Count IV, Holland’s individual-capacity claims against Mobley and Partlow,

and Grey’s individual-capacity claims against Stewart and Peterson, will be dismissed without

prejudice. Counts VI will be dismissed without prejudice.

Plaintiffs’ other § 1983 constitutional claims will proceed in part. Counts I and IV will

proceed against Custody and Housing Does in their individual capacities, and Counts II and V will

proceed against Health Care Does in their individual capacities. Gilliam’s individual-capacity

claims in Count III against Housing and Custody Does will proceed. Grey’s official-capacity

claims in Count IV and V will proceed. Count VII will proceed against Housing and Custody Does

but shall otherwise be dismissed without prejudice.

Plaintiffs’ disability discrimination claims in Counts VIII and XI will proceed, except

insofar as they are based on any denial or delay in medical treatment. Any disability discrimination

claims based on inadequate medical treatment will be dismissed without prejudice.

Plaintiffs’ tort claims in Counts X and XII will be dismissed without prejudice, and the

individual-capacity negligence claims in Count XI will be dismissed in part. Gilliam’s claims in

Count XI will proceed against Housing and Custody Does but are otherwise dismissed without

prejudice. Holland’s and Grey’s claims in Count XI will be dismissed without prejudice.

A separate Order will issue.

20th /S/

December, _____ 2024

Matthew J. Maddox

United States District Judge