The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 19 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LYRALISA LAVENA STEVENS, No. 19-15838
Plaintiff-Appellant, D.C. No.
1:17-cv-01002-AWI-SAB
v.
JEFFREY A. BEARD; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted December 9, 2022
San Francisco, California
Before: GRABER, GOULD, and WATFORD, Circuit Judges.
Lyralisa Stevens is a transgender prisoner who suffers from gender
dysphoria. The California Department of Corrections and Rehabilitation (CDCR)
has treated her condition with hormone therapy but, until 2019, had refused her
requests for gender-affirming surgery. After the CDCR denied her request for
gender-affirming surgery in 2016, Stevens brought this 42 U.S.C. § 1983 action
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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alleging that prison officials’ deliberate indifference to her serious medical needs
violates the Eighth Amendment. The district court granted the prison officials’
motion to dismiss based on claim preclusion and failure to state a claim. We
reverse.
1. In 2011, California state courts rejected Stevens’s habeas petition and
held that she was not entitled to gender-affirming surgery under the Eighth
Amendment. Under the Full Faith and Credit statute, 28 U.S.C. § 1738, we give
this decision the same preclusive effect that it would receive under California law.
See Gonzales v. Cal. Dep’t of Corr., 739 F.3d 1226, 1230 (9th Cir. 2014).
California’s claim preclusion doctrine requires that the later lawsuit involve (1)
“the same ‘cause of action’ as the first [suit],” (2) “a final judgment on the merits
in the first lawsuit,” and (3) the same parties or parties in privity. San Diego
Police Officers’ Ass’n v. San Diego City Emps.’ Ret. Sys., 568 F.3d 725, 734 (9th
Cir. 2009). California employs a “primary rights” theory to determine whether the
cause of action is the same. When the earlier and later suits involve “the same
injury to the plaintiff and the same wrong by the defendant,” the same cause of
action is present. Brodheim v. Cry, 584 F.3d 1262, 1268 (9th Cir. 2009) (quoting
Eichman v. Fotomat Corp., 197 Cal. Rptr. 612, 614 (Ct. App. 1983)). “What is
critical to the analysis ‘is the harm suffered; that the same facts are involved in
both suits is not conclusive.’” San Diego, 568 F.3d at 734 (quoting Agarwal v.
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Johnson, 603 P.2d 58, 72 (Cal. 1979)). Applying this approach, the district court
determined that the California habeas decision precludes the current action because
“both claims appear to involve the same harm of not receiving [gender-affirming
surgery].” But the state-court decision in 2011 did not forever foreclose the
possibility that the CDCR might be required to provide Stevens with gender-
affirming surgery in the future.
California law is clear that claim preclusion “extends only to the facts and
conditions as they existed at the time the judgment was rendered.” Lord v.
Garland, 168 P.2d 5, 11 (Cal. 1946). It does not “prevent a re-examination of the
same question between the same parties where, in the interval between the first and
second actions, the facts have materially changed or new facts have occurred
which may have altered the legal rights or relations of the litigants.” In re Fain,
188 Cal. Rptr. 653, 657 (Ct. App. 1983) (quoting Hurd v. Albert, 3 P.2d 545, 549
(Cal. 1931)).
In this case, Stevens alleges that in 2013—two years after the California
habeas decision—she was diagnosed with a pituitary adenoma and chronic gliosis,
new injuries that she claims are the result of her continued hormone therapy.
Stevens contends that these new conditions alter the Eighth Amendment analysis in
two ways. First, she alleges that these new side effects caused prison officials to
reduce her estrogen intake, exacerbating her gender dysphoria. Second, she claims
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that receiving gender-affirming surgery would allow her to treat her gender
dysphoria with a lower estrogen intake, reducing the risk that these side effects will
recur.
The prison officials argue that the California courts were aware of the risks
of these side effects when they denied Stevens’s prior habeas petition and therefore
insist that circumstances have not changed in a meaningful way. We disagree.
The facts that once-hypothetical risks have now materialized and that Stevens’s
medical condition has worsened as a result are significant developments. Stevens
has suffered a new injury—her worsened medical condition—and a new wrong—
CDCR’s denial of gender-affirming surgery in 2016. Thus, this is a new cause of
action. The 2011 California decision does not preclude Stevens from challenging
the prison’s 2016 denial of gender-affirming surgery in the face of this new
medical record.
2. Stevens has plausibly asserted an Eighth Amendment claim by alleging
“deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97,
104 (1976). We have held that gender dysphoria can be a serious medical need,
see Edmo v. Corizon, Inc., 935 F.3d 757, 785 (9th Cir. 2019) (per curiam), and the
district court did not suggest otherwise. It instead concluded that Stevens failed to
allege that the prison officials were deliberately indifferent to her serious medical
needs because two medical committees at the prison determined that hormone
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therapy adequately treated her gender dysphoria. Although Stevens had alleged
that the physicians who had evaluated her in 2010 would disagree with that
assessment, the district court reasoned that a difference of medical opinion does
not constitute deliberate indifference.
This analysis prematurely terminated the litigation. While showing a
difference of medical opinion is not sufficient to state an Eighth Amendment
violation, the existence of conflicting assessments does not necessarily defeat a
claim of deliberate indifference. “[T]hat is true only if the dueling opinions are
medically acceptable under the circumstances.” Edmo, 935 F.3d at 786. Whether
an opinion is medically acceptable under the circumstances is a fact-intensive
question that requires analysis of the physicians’ credentials, the bases for their
opinions, and the medical standards in the field. See id. 786–87. At this stage in
the litigation, we do not know whether any member of the prison’s medical
committees had experience in treating gender dysphoria, and their decisions
denying Stevens’s request for gender-affirming surgery are entirely devoid of
reasons. All we know is that, according to Stevens’s allegations, the committees’
decisions are contrary to the “WPATH Standards of Care,” which represent “the
consensus of the medical and mental health communities regarding the appropriate
treatment for transgender and gender dysphoric individuals.” Id. at 769.
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On this record, it would be improper to assume the reasonableness of the
committees’ assessment. Stevens instead should be permitted to conduct discovery
so that she can attempt to prove her claim that the committees’ decisions were
“medically unacceptable under the circumstances” and that the defendants acted
“in conscious disregard of an excessive risk to [her] health.” Hamby v. Hammond,
821 F.3d 1085, 1092 (9th Cir. 2016) (quoting Snow v. McDaniel, 681 F.3d 978,
988 (9th Cir. 2012)).
3. The prison officials argue that, regardless of the analysis above, we
should dismiss this action through a two-step process. First, they contend that we
must dismiss as moot Stevens’s request for injunctive relief because the CDCR
approved Stevens for gender-affirming surgery in 2019. Second, they urge us to
dismiss her remaining request for damages based on qualified immunity. We hold
that Stevens’s claim for injunctive relief is not moot and decline to resolve the
qualified immunity issue in the first instance.
Regarding mootness, a defendant’s voluntary cessation does not moot a case
unless (1) “it can be said with assurance that there is no reasonable expectation that
the alleged violation will recur,” and (2) “interim relief or events have completely
and irrevocably eradicated the effects of the alleged violation.” Fikre v. FBI, 904
F.3d 1033, 1037 (9th Cir. 2018) (cleaned up). The latter condition is not satisfied
here. Even though the CDCR approved her for gender-affirming surgery more
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than three years ago, Stevens still has not received that surgery and continues to
suffer hardships resulting from the alleged wrongful denial in 2016. In the face of
this prolonged delay, the district court has the authority to grant effective relief by
ensuring that Stevens promptly obtains the treatment that she contends (and that
the prison now recognizes) is medically necessary. See Bayer v. Neiman Marcus
Grp., Inc., 861 F.3d 853, 862 (9th Cir. 2017).
The prison officials insist that they are proceeding as quickly as possible and
that the long delay is due to an outside surgeon’s lack of availability, not their own
foot-dragging. This uncorroborated assertion is insufficient to meet the
defendants’ “heavy burden of establishing that there remains no effective relief a
court can provide.” Id. If the district court determines on remand that preparation
for the surgery is proceeding at an appropriate pace and that the prison officials are
operating in good faith, it can stay proceedings. But the case is not moot and the
federal courts retain jurisdiction over Stevens’s claim for injunctive relief so long
as she has not received the surgery.1
1
Defendants in this case include the CDCR Secretary and Undersecretary, as well
as members of the medical committees that denied Stevens’s surgery request in
2016. It is possible that the injunctive relief claim is moot as it relates to the
committee members because those defendants decide only whether a surgery is
necessary and exercise no authority over its scheduling or administration. Because
the parties did not adequately brief this argument before us, the district court on
remand will be better positioned to make this determination.
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As to Stevens’s claim for damages, we decline to address the issue of
qualified immunity in the first instance. See Am. President Lines, Ltd. v. Int’l
Longshore & Warehouse Union, 721 F.3d 1147, 1157 (9th Cir. 2013). The prison
officials remain free to raise that issue before the district court on remand.
REVERSED and REMANDED.