Philip Rosati v. Dr. Igbinoso

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHILIP WALKER ROSATI, No. 13-15984

Plaintiff-Appellant,

D.C. No.

v. 1:12-cv-01213-

RRB

IGBINOSO, Chief Medical Officer,

Pleasant Valley State Prison; SUSAN

L. HUBBARD, Director of California OPINION

Department of Corrections,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

Ralph R. Beistline, Chief District Judge, Presiding

Argued and Submitted

June 8, 2015—San Francisco, California

Filed June 26, 2015

Before: Barry G. Silverman, Ronald M. Gould,

and Andrew D. Hurwitz, Circuit Judges.

Per Curiam Opinion

2 ROSATI V. IGBINOSO

SUMMARY *

Prisoner Civil Rights

The panel reversed the district court’s dismissal of a pro

se complaint brought by a California state prisoner pursuant

to 42 U.S.C. § 1983 alleging that prison officials were

deliberately indifferent to the prisoner’s serious medical

needs, in violation of the Eighth Amendment, when they

refused to provide sexual reassignment surgery.

The panel held that the allegations in the complaint were

sufficient to state a claim. The panel held that plaintiff

plausibly alleged that her symptoms (including repeated

efforts at self-castration) were so severe that prison officials

recklessly disregarded an excessive risk to her health by

denying sexual reassignment surgery solely on the

recommendation of a physician’s assistant with no

experience in transgender medicine. The panel expressed no

opinion on whether sexual reassignment surgery was

medically necessary for plaintiff or whether prison officials

have other legitimate reasons for denying her that treatment.

The panel further held that on remand, the district court

should address the merits of plaintiff’s Equal Protection

Claim in the first instance.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ROSATI V. IGBINOSO 3

COUNSEL

Jon W. Davidson, Peter C. Renn (argued), Lambda Legal

Defense and Education Fund, Inc., Los Angeles, California;

Alison Hardy, Prison Law Office, Berkeley, California, for

Plaintiff-Appellant.

Kamala D. Harris, Attorney General, Jonathan L. Wolff,

Senior Assistant Attorney General, Thomas S. Patterson,

Supervising Deputy Attorney General, Jose A. Zelidon-

Zepeda and Neah Huynh (argued), Deputy Attorneys

General, San Francisco, California, for Defendants-

Appellees.

Cori A. Lable, Daniel V. McCaughey, Michael T. Packard,

and Kevin P. Budris, Ropes & Gray LLP, Boston,

Massachusetts, for Amicus Curiae World Professional

Association for Transgender Health.

OPINION

PER CURIAM:

Philip Walker Rosati (now known as Mia Rosati) is a

transgender inmate in the California prison system. 1 Rosati

filed a pro se 42 U.S.C. § 1983 complaint claiming that

prison officials violated the Eighth Amendment through

deliberate indifference to her serious medical needs. Rosati

alleges that she suffers from severe gender dysphoria for

1

Like the parties, we refer to Rosati in the feminine.

4 ROSATI V. IGBINOSO

which sexual reassignment surgery (“SRS”) is the medically

necessary treatment, but that prison officials refuse to

provide the surgery. The district court dismissed the

complaint at screening without leave to amend for failure to

state a claim. Rosati, now represented by counsel, appeals.

We have jurisdiction under 28 U.S.C. § 1291; we reverse the

dismissal and remand for further proceedings.

In determining whether a complaint should be dismissed

for failure to state a claim under the Prison Litigation Reform

Act, 28 U.S.C. § 1915(e)(2)(B)(ii), we apply the familiar

standard of Federal Rule of Civil Procedure 12(b)(6). See

Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012).

“[A] complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on

its face.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.

2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))

(internal quotation marks omitted).

Deliberate indifference to the serious medical needs of

an inmate is “cruel and unusual punishment” under the

Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97,

104–06 (1976). To demonstrate deliberate indifference,

“plaintiffs must show that [prison officials] were

(a) subjectively aware of the serious medical need and

(b) failed to adequately respond.” Conn v. City of Reno, 591

F.3d 1081, 1096 (9th Cir. 2010), vacated, 131 S. Ct. 1812

(2011), reinstated in relevant part, 658 F.3d 897 (9th Cir.

2011). An inmate challenging denial of treatment must

allege that the denial “was medically unacceptable under the

circumstances,” and made “in conscious disregard of an

excessive risk to [the inmate]’s health.” Jackson v.

McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).

ROSATI V. IGBINOSO 5

1. “A district court should not dismiss a pro se complaint

without leave to amend unless ‘it is absolutely clear that the

deficiencies of the complaint could not be cured by

amendment.’” Akhtar, 698 F.3d at 1212 (quoting Schucker

v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988) (per

curiam)). At oral argument, the state defendants conceded

that the district judge erred by dismissing without leave to

amend. This concession alone justifies reversal. But, even

absent the concession, we conclude that the complaint,

although not drafted with the skill and brevity expected of

counsel, stated an Eighth Amendment claim upon which

relief could be granted. See id. (noting that the court has “an

obligation where the petitioner is pro se, particularly in civil

rights cases, to construe the pleadings liberally and to afford

the petitioner the benefit of any doubt” (internal quotation

marks omitted)).

2. Rosati’s complaint plausibly alleges that she has

severe gender dysphoria, citing repeated episodes of

attempted self-castration despite continued hormone

treatment. 2 Rosati also alleges that the medically accepted

treatment for her dysphoria is SRS, supporting that

allegation with copious citations to the World Professional

Association for Transgender Health (“WPATH”) Standards

of Care. 3 Rosati plausibly alleges that prison officials were

2

For purposes of this appeal, the state conceded that gender dysphoria

is a serious medical condition.

3

The state’s argument that the WPATH standards are not fully

accepted by the medical community is unavailing because it relies on

matters outside the complaint. “When reviewing a motion to dismiss,

6 ROSATI V. IGBINOSO

aware of her medical history and need for treatment, but

denied the surgery because of a blanket policy against SRS.

Indeed, the state acknowledged at oral argument that no

California prisoner has ever received SRS. See, e.g., Colwell

v. Bannister, 763 F.3d 1060, 1063 (9th Cir. 2014) (holding

that the “blanket, categorical denial of medically indicated

surgery solely on the basis of an administrative policy that

one eye is good enough for prison inmates is the paradigm

of deliberate indifference” (internal quotation marks

omitted)).

Even absent such a blanket policy, Rosati plausibly

alleges her symptoms (including repeated efforts at self-

castration) are so severe that prison officials recklessly

disregarded an excessive risk to her health by denying SRS

solely on the recommendation of a physician’s assistant with

no experience in transgender medicine. See Pyles v. Fahim,

771 F.3d 403, 412 (7th Cir. 2014) (explaining that “if the

need for specialized expertise . . . would have been obvious

to a lay person, then the ‘obdurate refusal’ to engage

specialists permits an inference that a medical provider was

deliberately indifferent to the inmate’s condition”);

Hoptowit v. Ray, 682 F.2d 1237, 1252–53 (9th Cir. 1982)

(“Access to the medical staff has no meaning if the medical

staff is not competent to deal with the prisoners’

problems.”), abrogated on other grounds by Sandin v.

Conner, 515 U.S. 472 (1995).

Although Rosati lacks a medical opinion recommending

SRS, she plausibly alleges that this is because the state has

we consider only allegations contained in the pleadings, exhibits

attached to the complaint, and matters properly subject to judicial

notice.” Akhtar, 698 F.3d at 1212 (internal quotation marks omitted).

ROSATI V. IGBINOSO 7

failed to provide her access to a physician competent to

evaluate her. See De’lonta v. Johnson, 708 F.3d 520, 526

n.4 (4th Cir. 2013) (“Appellees . . . take pains to point out

that, absent a doctor’s recommendation, De’lonta cannot

show a demonstrable need for sex reassignment surgery.

However, we struggle to discern how De’lonta could have

possibly satisfied that condition when, as she alleges,

Appellees have never allowed her to be evaluated by a

[gender dysphoria] specialist in the first place.”).

3. We express no opinion on whether SRS is medically

necessary for Rosati or whether prison officials have other

legitimate reasons for denying her that treatment. But, like

other courts that have considered similar actions, we hold

that the allegations in Rosati’s complaint are sufficient to

state a claim. See, e.g., Kosilek v. Spencer, 774 F.3d 63, 91

(1st Cir. 2014) (en banc); De’lonta, 708 F.3d at 525–27;

Norsworthy v. Beard, 2015 WL 1478264, at *7–9 (N.D. Cal.

Mar. 31, 2015); Soneeya v. Spencer, 851 F. Supp. 2d 228,

245–52 (D. Mass. 2012); see also Fields v. Smith, 653 F.3d

550, 554–59 (7th Cir. 2011) (affirming a district court’s

determination that a statute barring hormone treatment and

gender reassignment surgery for prisoners was

unconstitutional). 4

REVERSED AND REMANDED.

4

Rosati also asserted an Equal Protection claim, which the district

court dismissed without explanation. That court should address the

merits of this claim in the first instance on remand. See Akhtar, 698 F.3d

at 1212–13 (“To comply with the law of this circuit, the district court

was required to explain the deficiencies in Akhtar’s first amended

complaint.”).