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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
------------------------------------------------*
OPHELIA AZRIEL DE'LONTA, a/k/a M.
Stokes,
Plaintiff-Appellant,
v.
RONALD J. ANGELONE; M. V. SMITH;
R. HULBERT, Dr.; COLIN C.J.No. 01-8020
ANGLIKER, Dr.; DOCTOR WRAY,
Defendants-Appellees,
and
DONALD SWETTER, M.D.,
Defendant.
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Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Senior District Judge. (CA-99-642-7)
Argued: April 3, 2003
Decided: May 27, 2003
Before WILKINS, Chief Judge, and MOTZ and KING, Circuit Judges.
____________________________________________________________
Reversed and remanded by published opinion. Chief Judge Wilkins
wrote the opinion, in which Judge Motz and Judge King joined.
____________________________________________________________
COUNSEL
ARGUED: Kelly Marie Baldrate, VICTOR M. GLASBERG &
ASSOCIATES, Alexandria, Virginia, for Appellant. Peter Duane
Vieth, WOOTENHART, P.C., Roanoke, Virginia, for Appellees. ON
BRIEF: Victor M. Glasberg, VICTOR M. GLASBERG & ASSO-
CIATES, Alexandria, Virginia; Rebecca K. Glenberg, AMERICAN
CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, Rich-
mond, Virginia, for Appellant. George W. Wooten, WOOTENHART,
P.C., Roanoke, Virginia; William W. Muse, Assistant Attorney Gen-
eral, OFFICE OF THE ATTORNEY GENERAL, Richmond, Vir-
ginia, for Appellees.
____________________________________________________________
OPINION
WILKINS, Chief Judge:
Virginia inmate Ophelia Azriel De'lonta (born Michael A. Stokes)
appeals a district court order dismissing for failure to state a claim,
see 28 U.S.C.A. § 1915(e)(2)(B)(ii) (West Supp. 2002), her complaint
under 42 U.S.C.A. § 1983 (West Supp. 2002) claiming prison offi-
cials have denied her adequate medical treatment in violation of the
Eighth Amendment. Because we conclude that it does not appear
beyond doubt that De'lonta cannot prove facts to support her claim,
we reverse and remand for further proceedings.
I.1
De'lonta suffers from gender identity disorder (GID) (also known
as gender dysphoria or transsexualism), a disorder characterized by a
feeling of being trapped in a body of the wrong gender. She2 has
undergone various procedures to make herself appear more feminine,
including dermabrasions and a chemical face peel. She has also
____________________________________________________________
1 Because the district court dismissed De'lonta's complaint for failure
to state a claim, we accept all of the allegations in her complaint as true,
construing her pro se complaint liberally. See Estelle v. Gamble, 429
U.S. 97, 99, 106 (1976); DeWalt v. Carter, 224 F.3d 607, 611-12 (7th
Cir. 2000) (stating that same standards apply to dismissals under
§ 1915(e)(2)(B)(ii) as apply to dismissals under Fed. R. Civ. P. 12(b)(6)).
2 We use feminine pronouns to refer to De'lonta, as did the district
court.
2
received estrogen treatment to slow hair growth, soften her skin, and
develop breasts and other female characteristics.
De'lonta has been in the custody of the Virginia Department of
Corrections (VDOC) since 1983. Since the beginning of her imprison-
ment, VDOC doctors have consistently diagnosed her as suffering
from GID, and De'lonta received estrogen therapy for the disorder in
1993 while in Greensville Correctional Center. This treatment contin-
ued until 1995, when De'lonta was transferred to Mecklenburg Cor-
rectional Center and her hormone treatment was terminated pursuant
to a then-recently created VDOC policy ("the Policy"). The Policy is
outlined in a memo dated September 19, 1995, from VDOC Chief
Physician M. Vernon Smith:
It is the policy of the Department of Corrections [ ] that nei-
ther medical nor surgical interventions related to gender or
sex change will be provided to inmates in the management
of [GID] cases.
If an inmate has come into prison and/or is currently receiv-
ing hormone treatment, he is to be informed of the depart-
ment['s] policy and the medication should be tapered
immediately and thence discontinued.
Inmates presenting with [GID] should be referred to the
institution[']s mental health staff for further evaluation.
J.A. 28.
In contravention of the directive that hormone treatment be tapered
off, De'lonta's hormone treatment was terminated abruptly, causing
De'lonta to suffer nausea, uncontrollable itching, and depression.
The most harmful effect of the cessation of the hormone treatment,
however, was that De'lonta developed an uncontrollable urge to muti-
late her genitals. Although she had engaged in some self-mutilation
previously, it had consisted primarily of cutting her arms and hands.
Since termination of the hormone treatment, however, she has stabbed
or cut her genitals on more than 20 occasions. She has repeatedly
3
requested resumption of the hormone therapy and treatment by a gen-
der specialist. To date, however, her requests have been denied, and
her self-mutilation has continued.
In 1999, De'lonta filed suit against Dr. Smith, other Virginia prison
doctors, and VDOC Director Ron Angelone (collectively, "Appel-
lees"), alleging that Appellees have inflicted cruel and unusual pun-
ishment on her, in violation of her Eighth Amendment rights, by
denying her adequate medical treatment for her GID. She sought an
injunction requiring Appellees to arrange for her to be treated by a
doctor with expertise in transsexualism and to allow her to resume her
hormone therapy until that treatment commenced. She also requested
declaratory and monetary relief, including punitive damages.
Angelone responded by filing a summary judgment motion with an
attached affidavit. The other Appellees moved to dismiss for failure
to state a claim. The district court dismissed De'lonta's claims against
all Appellees pursuant to 28 U.S.C.A. § 1915(e)(2)(B)(ii), concluding
that the record demonstrated beyond doubt that she could not plead
facts that would state a valid Eighth Amendment claim. Regarding
De'lonta's entitlement to adequate treatment for her GID, the court
ruled that the record was clear that De'lonta was receiving some treat-
ment. The court concluded that the gravamen of De'lonta's claim was
simply a disagreement with the medical judgment concerning what
treatment was appropriate and that such a disagreement did not state
a claim under the Eighth Amendment. The court also concluded that
the failure of the VDOC to follow its tapering policy in 1995 did not
rise to the level of an Eighth Amendment violation. The court further
ruled that any claim for equitable relief from that conduct had become
moot, and any legal claim was time-barred.
In addition, the court denied a motion by De'lonta to amend her
complaint, concluding that amendment would be futile. Finally,
although the court stated that it was "unable to conceive of any set of
facts under which the Eighth Amendment would entitle" De'lonta to
relief, the court dismissed her complaint without prejudice "[t]o avoid
complicating any future actions with issues of collateral estoppel or
claim preclusion."3 J.A. 183, 188.
____________________________________________________________
3 Although a dismissal without prejudice is not normally appealable,
because the grounds provided by the district court for dismissal "clearly
4
II.
De'lonta has not challenged the district court ruling that the abrupt-
ness of the termination of her hormone therapy did not violate the
Eighth Amendment. She does argue, however, that the district court
erred in dismissing her remaining claims. The standards for reviewing
a dismissal under § 1915(e)(2)(B)(ii) are the same as those for
reviewing a dismissal under Federal Rule of Civil Procedure 12(b)(6).
See DeWalt v. Carter, 224 F.3d 607, 611-12 (7th Cir. 2000). Thus, we
review a § 1915(e)(2)(B)(ii) dismissal de novo. See id. "A complaint
should not be dismissed for failure to state a claim upon which relief
may be granted unless after accepting all well-pleaded allegations in
the plaintiff's complaint as true and drawing all reasonable factual
inferences from those facts in the plaintiff's favor, it appears certain
that the plaintiff cannot prove any set of facts in support of his claim
entitling him to relief." Veney v. Wyche, 293 F.3d 726, 730 (4th Cir.
2002) (internal quotation marks omitted). Additionally, the allega-
tions in pro se complaints should be liberally construed.4 See Hughes
v. Rowe, 449 U.S. 5, 9-10 (1980) (per curiam).
De'lonta's claim arises under the Eighth Amendment. Scrutiny
under the Eighth Amendment is not limited to those punishments
authorized by statute and imposed by a criminal judgment. See Wilson
v. Seiter, 501 U.S. 294, 297 (1991). The Amendment also provides
protection with respect to "the treatment a prisoner receives in prison
and the conditions under which he is confined." Helling v. McKinney,
509 U.S. 25, 31 (1993). Those conditions include the adequacy of the
medical care that the prison provides. See Estelle v. Gamble, 429 U.S.
97, 103 (1976).
____________________________________________________________
indicate that no amendment in the complaint could cure the defects in the
plaintiff's case," we conclude that the order dismissing De'lonta's com-
plaint is an appealable final order. Domino Sugar Corp. v. Sugar Work-
ers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir. 1993) (alteration
& internal quotation marks omitted).
4 In dismissing this action, the district court considered all documents
attached to De'lonta's complaint and to her proposed amended com-
plaint. Because the parties agree that such consideration was appropriate,
we have also used the materials to the extent that they clarify the allega-
tions in the complaint.
5
The showing necessary to demonstrate that particular conduct by
prison officials is sufficiently serious to constitute cruel and unusual
punishment "varies according to the nature of the alleged constitu-
tional violation." Hudson v. McMillian, 503 U.S. 1, 5 (1992). In order
to establish that she has been subjected to cruel and unusual punish-
ment, a prisoner must prove (1) that "the deprivation of [a] basic
human need was objectively `sufficiently serious,'" and (2) that "sub-
jectively `the officials act[ed] with a sufficiently culpable state of
mind.'" Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993) (sec-
ond alteration in original) (quoting Wilson, 501 U.S. at 298). Only
extreme deprivations are adequate to satisfy the objective component
of an Eighth Amendment claim regarding conditions of confinement.
See Hudson, 503 U.S. at 8-9. In order to demonstrate such an extreme
deprivation, a prisoner must allege "a serious or significant physical
or emotional injury resulting from the challenged conditions," Strick-
ler, 989 F.2d at 1381, or demonstrate a substantial risk of such serious
harm resulting from the prisoner's exposure to the challenged condi-
tions, see Helling, 509 U.S. at 33-35. The subjective component of an
Eighth Amendment claim challenging the conditions of confinement
is satisfied by a showing of deliberate indifference by prison officials.
See Farmer v. Brennan, 511 U.S. 825, 834 (1994)."[D]eliberate
indifference entails something more than mere negligence . . . [but]
is satisfied by something less than acts or omissions for the very pur-
pose of causing harm or with knowledge that harm will result." Id. at
835. It requires that a prison official actually know of and disregard
an objectively serious condition, medical need, or risk of harm. See
id. at 837; Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995).
Here, De'lonta contends that her complaint, when liberally con-
strued, alleges facts sufficient to establish that the denial of treatment
for her compulsion to mutilate herself constitutes deliberate indiffer-
ence to her medical needs. In particular, she claims she could prove
that (1) Appellees know that she suffers from GID; (2) she was
receiving treatment until 1995, when it was abruptly terminated for
no legitimate reason; (3) the termination of the therapy has resulted
in compulsive, repeated self-mutilation of her genitals; and (4) after
Appellees terminated the hormone treatment, they have refused to
provide any treatment to prevent her from mutilating herself, leaving
her at continued risk for serious, self-inflicted injuries. We agree with
De'lonta that such allegations adequately state a claim for relief and
6
that the record does not demonstrate beyond doubt that De'lonta
could not prove those allegations.
First, De'lonta's need for protection against continued self-
mutilation constitutes a serious medical need to which prison officials
may not be deliberately indifferent. See Lee v. Downs, 641 F.2d 1117,
1121 (4th Cir. 1981) (explaining that "prison officials have a duty to
protect prisoners from self-destruction or self-injury"). And, nothing
in the record refutes the allegation that Appellees know that
De'lonta's compulsive self-mutilation began after the discontinuation
of her hormone therapy. Nor does the limited record before us demon-
strate any justification (although there may be one not yet disclosed)
for either the policy requiring termination of De'lonta's hormone
treatment or the alleged denial of any other treatment to prevent her
continuing self-inflicted injuries.
In dismissing De'lonta's suit, the district court incorrectly deter-
mined, based on the limited record before it, that the suit was nothing
more than a challenge to the medical judgment of VDOC doctors.
This conclusion was based largely on a memorandum to Appellee
Smith, the VDOC Chief Physician, in which a Dr. Rob Marsh
reported that De'lonta had requested a referral to a gender specialist
at the Medical College of Virginia (MCV) for the purpose of discuss-
ing hormone replacement. The memo states that De'lonta "was
advised that [Dr. Marsh] did not feel it was a medical necessity or
indication," but that Dr. Marsh would forward the request to Dr.
Smith for further review. J.A. 87. Based on this memo, the district
court concluded that the prison medical staff "did not feel that hor-
mone therapy or a special consultation were appropriate," id. at 185,
and therefore that the suit amounted to nothing more than a challenge
to this medical judgment. For this reason, the court concluded that
De'lonta's remedy could lie only in a state medical malpractice action
and not in an Eighth Amendment claim. See Russell v. Sheffer, 528
F.2d 318, 319 (4th Cir. 1975) (per curiam) (holding that "[q]uestions
of medical judgment are not subject to judicial review" under § 1983).
We conclude that the district court was in error. Even assuming
that Dr. Marsh advised De'lonta as the memo states, nothing in the
record suggests that Dr. Marsh's opinion was a basis for the denial of
De'lonta's requested treatment. In fact, Dr. Smith's response to the
7
memo, which states that there was no gender specialist at MCV and
that VDOC's policy is not to provide hormone therapy to prisoners,
supports the inference that Appellees' refusal to provide hormone
treatment to De'lonta was based solely on the Policy rather than on
a medical judgment concerning De'lonta's specific circumstances. Cf.
Supre v. Ricketts, 792 F.2d 958, 963 (10th Cir. 1986) (holding that
prisoner who had engaged in self-mutilation was not entitled to hor-
mone treatment for gender dysphoria because denial of such treatment
was based on "an informed [medical] judgment").
Moreover, Dr. Marsh's memo is at most only a comment on the
appropriateness of one possible treatment and does not refute
De'lonta's claim that she has not received any treatment to suppress
her compulsion to mutilate herself. Cf. id. ("This case . . . does not
present a situation where there was a total failure to give medical
attention."); id. at 967 (Seymour, J., dissenting) (concluding that
deliberate indifference claim "was plainly not unfounded" when "re-
cord contain[ed] no proof that prison physicians ever addressed
whether [prisoner's] self-mutilation might have been . . . in need of
treatment"). But cf. Maggert v. Hanks, 131 F.3d 670, 672 (7th Cir.
1997) (holding that prisoner was not constitutionally entitled to cura-
tive treatment for gender dysphoria, but not indicating that prisoner
was at risk for self-mutilation or other serious bodily harm). At oral
argument, Appellees argued that even if Dr. Marsh's memo does not
show that De'lonta received treatment for her GID, De'lonta's other
submissions demonstrate that she has been housed at a facility for
inmates who need special attention to mental health issues and that
De'lonta has received counseling and anti-depressants. Appellees
pointed specifically to a mental health evaluation stating that De'lonta
had "been receiving Prozac and . . . Doxepin which appear to assist
h[er] in h[er] mood symptoms" and that "[De'lonta states] that the
Prozac helps h[er] with h[er] urges to cut on h[er]self." J.A. 90. These
submissions, however, only indicate that some treatment De'lonta
received may have alleviated her compulsion to mutilate herself; they
do not clearly demonstrate that the treatment was provided for that
purpose or that it was deemed to be a reasonable method of prevent-
ing further mutilation.
For all of these reasons, we conclude that it does not appear beyond
doubt at this early stage of the litigation that De'lonta cannot prove
8
facts sufficient to support her claim that she has not received constitu-
tionally adequate treatment to protect her from her compulsion to
mutilate herself. We therefore reverse the district court order dismiss-
ing De'lonta's suit and remand to the district court for further pro-
ceedings. In so doing, we make no comment on the merits of any
issues not yet addressed by the district court, and we specifically
make no comment on the type of treatment, if any, to which De'lonta
is entitled.
III.
In sum, we reverse the dismissal of De'lonta's § 1983 suit and
remand to the district court for further proceedings consistent with
this opinion.5
REVERSED AND REMANDED
____________________________________________________________
5 Appellees argue that Angelone should be dismissed from this suit
even if De'lonta has stated a valid Eighth Amendment claim against
other Appellees. Because the district court has yet to rule on this issue,
we decline to do so in this appeal.
De'lonta's motions to supplement the record are denied.
9