The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
On July 17, 2006, the parties to this action consented, pursuant to 28 U.S.C. § 636(c)(1), to proceed before the undersigned. The matter is presently before the court on Defendants' motion to dismiss (Doc. No. 44), filed July 2, 2009, and on Plaintiff's cross-motion for partial summary judgment (Doc. No. 48), filed September 21, 2009.
On December 1, 2005, Plaintiff Leslie Ann Manning, also known as Ronald Manning ("Plaintiff" or "Manning"), then proceeding pro se, commenced this civil rights action pursuant to 42 U.S.C. § 1983, while incarcerated at Wende Correctional Facility ("Wende"), in Alden, New York, where Plaintiff was housed in the Regional Medical Unit ("RMU"). Named as Defendants in the original complaint are New York State Department of Correctional Services ("DOCS") Commissioner Glenn S. Goord ("Goord"), DOCS Chief Medial Officer Lester Wright, M.D. ("Dr. Wright"), and Wende RMU Medical Director Mary Clemens, M.D. ("Dr. Clemens"). Plaintiff, a self-designated transsexual who, although anatomically male, identifies with the female gender and considers himself to be a female, alleged Defendants violated Plaintiff's civil rights by denying Plaintiff treatment for Gender Identity Disorder ("GID"), and retaliated against Plaintiff for complaining about the denial of GID treatment by housing Plaintiff in a double-occupancy cell with a male inmate. Defendants's answer was filed on February 2, 2006.
Pursuant to Plaintiff's motion filed February 27, 2006 (Doc. No. 7), the undersigned, on June 6, 2006 (Doc. No. 9), granted Plaintiff's request for appointment of counsel, pro bono, assigning Kiseok Moon, Esq. ("Moon"), of Phillips Lytle LLP ("Phillips Lytle") to represent Plaintiff in this matter. On August 24, 2006, Phillips Lytle attorney William P. Keefer, Esq. ("Keefer"), filed a notice of appearance on Plaintiff's behalf (Doc. No. 13), and Moon was terminated as Plaintiff's attorney. By order filed August 31, 2006 (Doc. No. 15), the undersigned appointed Keefer as Plaintiff's attorney; Keefer has been assisted in the instant proceedings by Erick Bennett, Esq., an associate attorney at Phillips Lytle. The court expresses its appreciation to Mr. Keefer and Ms. Bennett for their able representation on this complex matter.
On December 1, 2006, Plaintiff, represented by Keefer, filed the amended complaint (Doc. No. 21) ("Amended Complaint"), asserting Defendants are liable under 42 U.S.C. § 1983, for deprivation of her*fn1 rights under the Fifth, Eighth and Fourteenth Amendments by failing to diagnose and treat Plaintiff for GID, and retaliated against Plaintiff for commencing this action by transferring Plaintiff from a single cell to a double occupancy cell with a male cellmate. Defendants' answer to the Amended Complaint was filed on March 20, 2007 (Doc. No. 22).
On July 2, 2009, Defendants filed a motion to dismiss the Amended Complaint (Doc. No. 44) ("Defendants' Motion"), attached to which is the Memorandum of Law in Support of Defendants' Motion to Dismiss (Doc. No. 44-2) ("Defendants' Memorandum"). In opposition to Defendants' Motion, Plaintiff filed on September 21, 2009, the cross-motion for partial summary judgment (Doc. No. 48) ("Plaintiff's Motion"), attached to which are the Declaration of Leslie Ann Manning (Doc. No. 48-2) ("Plaintiff's Declaration"), the Affidavit of William P. Keefer, Esq. (Doc. No. 48-3) ("Keefer Affidavit"), exhibits A through J (Docs. Nos. 48-4 through 48-13) ("Plaintiff's Exh(s). __"), a Statement of Undisputed Facts (Doc. No. 48-14) ("Plaintiff's Undisputed Facts Statement"), and a Memorandum of Law in Opposition to Defendants' Motion to Dismiss and in Support of Plaintiff's Motion for Partial Summary Judgment (Doc. No. 48-15) ("Plaintiff's Memorandum").
On November 17, 2009, Defendants filed the Memorandum of Law in Opposition to Plaintiff's Cross-Motion for Summary Judgment and in Further Support of Defendants' Motion to Dismiss (Doc. No. 52) ("Defendants' Response"), a Counter Statement of Facts in Response to Plaintiff's Statement of Undisputed Facts (Doc. No. 53) ("Defendants' Facts Statement"); the Declarations of Assistant Attorney General David J. State (Doc. No. 54) ("State Declaration"), with attached exhibits A and B ("Defendants' Exh(s). __"), DOCS Superintendent Goord (Doc. No. 55) ("Goord Declaration"), Dr. Clemens (Doc. No. 56) ("Dr. Clemens Declaration"), and Dr. Wright (Doc. No. 56) ("Dr. Wright Declaration"). On December 16, 2009, Plaintiff filed in further support of Plaintiff's Motion the Reply Affidavit of William P. Keefer, Esq. (Doc. No. 58) ("Keefer Reply Affidavit"), with attached exhibit A (Doc. No. 58-2) ("Plaintiff's Reply Exh. A"), and the Reply Memorandum of Law in Further Support of Plaintiff's Motion for Partial Summary Judgment (Doc. No. 58-3) ("Plaintiff's Reply Memorandum"). Oral argument was deemed unnecessary.
Based on the following, Defendants' Motion to dismiss is DENIED; Plaintiff's Motion is DENIED; summary judgment is GRANTED in favor of Defendants.
At all times relevant to this action, Plaintiff Leslie Ann Manning, also known as Ronald Manning ("Plaintiff" or "Manning"), was housed at Wende Correctional Facility ("Wende"), in Alden, New York, Defendant Lester Wright, M.D. ("Dr. Wright"), was DOCS Chief Medical Officer, and Defendant Mary Clemens, M.D. ("Dr. Clemens"), was Director of Wende's Regional Medical Unit ("RMU"). Wende's RMU "is essentially a nursing home for chronically ill inmates." Dr. Clemens Declaration ¶ 2. Plaintiff has been housed in Wende's RMU for health problems related to his HIV-positive status,*fn3 with a poor prognosis.
Plaintiff maintains that although born a male, since age seven, she "has had a strong psychological urge to live and dress as a female," and claims to have been diagnosed, at an unspecified age, with Gender Identity Disorder ("GID"), or Transsexualism. Amended Complaint ¶¶ 9-10. According to Plaintiff, GID causes her "to identify with the female gender rather than the male gender," resulting in Plaintiff experiencing anguish and depression. Id. ¶¶ 11-12. Although the record contains no evidence establishing Plaintiff had been medically identified with GID prior to her current incarceration, Plaintiff claims that throughout her incarceration, and prior to 2003, she made numerous requests to receive hormone therapy to treat her GID, but her requests were always denied. Plaintiff's Declaration ¶ 5.
Plaintiff alleges that at some unidentified time during Plaintiff's current incarceration at Wende, she took estrogen pills*fn4 provided to her from another, unidentified, inmate, but had been unable to take any estrogen since the inmate was transferred to another correctional facility, causing Plaintiff to become depressed. Amended Complaint ¶¶ 17-18. Plaintiff further alleges "Defendants' refusal to provide Plaintiff appropriate medical care for Plaintiff's medical condition has resulted in Plaintiff experiencing extreme emotional anguish and depression which has manifested itself in attempts to self mutilate and commit suicide." Amended Complaint ¶ 22.
A policy statement issued by DOS DHS on February 23, 1993, provides DOCS "continues treating inmates for Gender Dysphoria*fn5 identified prior to incarceration." DOCS Health Care Policy 1.31 ("DOCS GID Policy"), Plaintiffs' Exh. H. In particular, before estrogen therapy would be provided to an inmate with GID, "[d]ocumentation of prior hormonal therapy must be obtained from the inmate's prior provider." Id. Further, transsexual surgical operations would not be allowed during an inmate's period of incarceration. Id.
Plaintiff was initially treated in Wende's RMU by Angel A. Gutierrez, M.D. ("Dr. Gutierrez"), until 2002 when Dr. Gutierrez became the RMU's medical director, and Dr. Clemens became Plaintiff's treating physician in the RMU. While under Dr. Gutierrez's care, Plaintiff requested hormone therapy for GID, which Dr. Gutierrez refused because of Dr. Gutierrez's perception was that Plaintiff, "as a patient was someone who was not here long," i.e., expected to live long, based on Plaintiff's AIDS diagnosis, that Plaintiff was "already having tremendous difficulty dealing with the HIV medication," and that Plaintiff, who had yet to be diagnosed with GID and who was not already receiving hormone therapy, did not meet DOCS GID Policy requirements. Dr. Gutierrez Deposition T.*fn6 at 34-37. Dr. Gutierrez explained that the decision to deny Plaintiff's request for hormone therapy was based on Dr. Gutierrez's professional opinion that it was against Plaintiff's best interest to give Plaintiff a "high dose hormone treatment" in light of Plaintiff's HIV-positive status, combined with the fact that because Plaintiff did not enter DOCS system already under treatment for GID, the DOCS GID Policy prohibited Dr. Gutierrez from starting Plaintiff on the hormone therapy at that time. Id. at 41.
On April 22, 2003, Plaintiff filed Inmate Grievance Complaint No. 19153-03 ("First Grievance"),*fn7 challenging Dr. Gutierrez's denial, in 2002, of hormone therapy to treat her GID. First Grievance at 1. On May 7, 2003, the Inmate Grievance Review Committee ("IGRC"), denied the First Grievance because Plaintiff did not "meet the criteria for the requested hormonal therapy" under the DOCS GID Policy. First Grievance at 2.
On July 24, 2003, Dr. Wright, in connection with an unrelated legal action involving another inmate seeking treatment for GID, stated in a declaration that DOCS GID Policy should not be interpreted so as to deny evaluation or treatment for an inmate who first manifests GID while incarcerated. July 24, 2003 Declaration of Lester Wright, M.D. ("2003 Dr. Wright Declaration"), ¶ 7 (Plaintiff's Exh. G). Dr. Wright further stated in that action that upon an inmate's first manifestation of GID, "a referral should be made to the appropriate clinician with OMH [New York State Office of Mental Health] for evaluation." 2003 Dr. Wright Declaration ¶ 8 (bracketed material added).
On October 20, 2003, Plaintiff filed Inmate Grievance Complaint No. 20159-03 ("Second Grievance"),*fn8 again challenging the denial of her requests for hormone therapy treatment for her GID. Second Grievance at 2. On November 5, 2003, the IGRC denied the Second Grievance because Plaintiff did not "meet the criteria for the to receive hormonal therapy." Second Grievance at 2. An appeal of the denial of ...