Ophelia De'Lonta v. Gene Johnson , 708 F.3d 520 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
OPHELIA AZRIEL DE’LONTA, 
Plaintiff-Appellant,
v.
GENE JOHNSON, Director of VDOC;
FRED SCHILLING, Director of Health
Services for VDOC; MEREDITH R.
CAREY, Chief Psychiatrist for
VDOC; GARY L. BASS, Chief of
Operations, VDOC; W. P. ROGERS,
Assistant Deputy Director of
Operations, VDOC; GERALD K.
WASHINGTON, Regional Director,  No. 11-7482
Central Regional Office for the
VDOC; EDDIE PEARSON, Warden of
Powhatan Correctional Center,
VDOC; ANTHONY SCOTT, Chief of
Security at Powhatan Correctional
Center; ROBERT L. HULBERT, PhD.,
Mental Health Director for the
VDOC; LARRY EDMONDS, Warden,
Buckingham Correctional Center,
VDOC; MAJOR C. DAVIS, Chief of
Security of Buckingham
Correctional Center;

2 DE’LONTA v. JOHNSON
LISA LANG, Staff Psychologist; 
TONEY, Counselor at Buckingham
Correctional Center; LOU DIXON,
Registered Nurse Manager,
Buckingham Correctional Center,
Defendants-Appellees.

DC TRANS COALITION; AMERICAN
CIVIL LIBERTIES UNION; AMERICAN
CIVIL LIBERTIES UNION OF VIRGINIA,
INCORPORATED,
Amici Supporting Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, Senior District Judge.
(7:11-cv-00257-JCT-RSB)
Argued: October 24, 2012
Decided: January 28, 2013
Before MOTZ, KING, and DIAZ, Circuit Judges.
Reversed and remanded by published opinion. Judge Diaz
wrote the opinion, in which Judge Motz and Judge King
joined.
DE’LONTA v. JOHNSON 3
COUNSEL
ARGUED: Bernadette Francoise Armand, VICTOR M.
GLASBERG & ASSOCIATES, Alexandria, Virginia, for
Appellant. Earle Duncan Getchell, Jr., OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-
ginia, for Appellees. ON BRIEF: Victor M. Glasberg, VIC-
TOR M. GLASBERG & ASSOCIATES, Alexandria,
Virginia, for Appellant. Kenneth T. Cuccinelli, II, Attorney
General of Virginia, Michael H. Brady, Assistant Attorney
General, Charles E. James, Jr., Chief Deputy Attorney Gen-
eral, Wesley G. Russell, Jr., Deputy Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellees. Jeffrey Light, LAW
OFFICE OF JEFFREY LIGHT, Washington, D.C., for DC
Trans Coalition, Amicus Supporting Appellant. Joshua Block,
AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
New York, New York; Rebecca K. Glenberg, AMERICAN
CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION,
INC., Richmond, Virginia, for American Civil Liberties
Union Inc., and American Civil Liberties Union of Virginia,
Inc., Amici Supporting Appellant.
OPINION
DIAZ, Circuit Judge:
Virginia inmate Ophelia Azriel De’lonta (born Michael A.
Stokes) filed suit under 42 U.S.C. § 1983 claiming that prison
officials denied her adequate medical treatment in violation of
the Eighth Amendment. The district court dismissed the com-
plaint for failure to state a claim. Because we conclude that
De’lonta’s complaint states a claim for relief that is plausible
on its face, we reverse and remand for further proceedings.
I.
On appeal from a dismissal for failure to state a claim upon
which relief can be granted, we accept as true all the factual
4 DE’LONTA v. JOHNSON
allegations contained in the complaint and construe them in
the light most favorable to the plaintiff. Flood v. New Hano-
ver County, 125 F.3d 249, 251 (4th Cir. 1997).
A.
De’lonta has been in the custody of the Virginia Depart-
ment of Corrections ("VDOC") since 1983, serving a 73-year
sentence for bank robbery. She is a pre-operative transsexual
suffering from a diagnosed and severe form of a rare, medi-
cally recognized illness known as gender identity disorder
("GID"). GID is characterized by a feeling of being trapped
in a body of the wrong gender. This belief has caused
De’lonta to suffer "constant mental anguish" and, on several
occasions, has caused her to attempt to castrate herself in
efforts to "perform[ ] [her] own makeshift sex reassignment
surgery." App. 14, 46, 48. De’lonta has described these ongo-
ing urges to perform self-surgery as "overwhelming." App.
31.
In 1999, De’lonta filed a § 1983 lawsuit alleging that
VDOC had instituted a policy that wrongfully prevented her
from receiving GID treatment in violation of the Eighth
Amendment. As in the instant case, the district court dis-
missed De’lonta’s 1999 complaint for failure to state a claim.
We reversed and remanded, holding that De’lonta’s need for
protection against continued self-mutilation constituted an
objectively serious medical need under the Eighth Amend-
ment and that De’lonta had sufficiently alleged VDOC’s
deliberate indifference to that need. De’lonta v. Angelone
("De’lonta I"), 330 F.3d 630, 634 (4th Cir. 2003). The parties
subsequently reached a settlement in which VDOC acknowl-
edged De’lonta’s serious medical need and agreed to provide
continuing treatment.
Since that settlement, VDOC, in consultation with an out-
side Gender Identity Specialist, has provided De’lonta with
GID treatment consisting of regular psychological counseling
DE’LONTA v. JOHNSON 5
and hormone therapy. De’lonta has also been allowed to dress
and live as a woman to the full extent permitted by VDOC.
Despite these treatments, which have continued since 2004,
De’lonta’s symptoms have persisted. In a series of formal
grievances and letters, De’lonta notified prison officials of her
"extreme distress" with her treatment team. She complained
that although her treatment program had produced "growth
and stability[,]" she was still feeling strong, "imminent" urges
to self-castrate. In July 2010, De’lonta was hospitalized fol-
lowing a self-castration attempt.
In a September 2010 letter, De’lonta asserted that her urges
to self-castrate are particularly overwhelming immediately
following her therapy sessions with VDOC Psychologist Lisa
Lang. J.A. 31. De’lonta asked to stop seeing Lang, and repeat-
edly requested sex reassignment surgery pursuant to the GID
treatment guidelines established by the "Benjamin Standards
of Care" ("Standards of Care").
The Standards of Care, published by the World Profes-
sional Association for Transgender Health,1 are the generally
accepted protocols for the treatment of GID. They establish a
"triadic treatment sequence" comprised of (1) hormone ther-
apy; (2) a real-life experience of living as a member of the
opposite sex; and (3) sex reassignment surgery. App. 15. The
Standards of Care explain that although the first two treatment
options provide sufficient relief for some patients, others with
more severe GID may require sex reassignment surgery. Pur-
suant to the Standards of Care, after at least one year of hor-
mone therapy and living in the patient’s identified gender
role, sex reassignment surgery may be necessary for some
individuals for whom serious symptoms persist. App. 16. In
these cases, the surgery is not considered experimental or cos-
1
Formerly known as the Harry Benjamin International Gender Dyspho-
ria Association, which is the name to which De’lonta referred in her com-
plaint.
6 DE’LONTA v. JOHNSON
metic; it is an accepted, effective, medically indicated treat-
ment for GID.
Responding to De’lonta’s letters and grievances, VDOC’s
Chief Psychiatrist, Dr. Meredith Cary, replied that "in regards
to gender reassignment surgery, I would request that you con-
tinue to work with Ms. Lang in individual therapy at this
time." App. 37. Although VDOC consults with an outside
Gender Identity Specialist regarding De’lonta’s care, she has
never been evaluated by a GID specialist concerning her need
for sex reassignment surgery.
B.
In 2011, De’lonta filed suit against Gene Johnson, the for-
mer director of VDOC, as well as numerous VDOC adminis-
trators and members of her care team (collectively,
"Appellees"). De’lonta’s complaint alleges that, in light of
their knowledge of her ongoing risk of self-mutilation, Appel-
lees’ continued denial of consideration for sex reassignment
surgery constitutes deliberate indifference to her serious med-
ical need in violation of the Eighth Amendment. On screening
pursuant to 28 U.S.C. § 1915A(b)(1), the district court dis-
missed the complaint without prejudice for failure to state a
claim upon which relief could be granted.2 De’lonta v. John-
son ("De’lonta II"), No. 7:11-CV-00257, 2011 WL 5157262(W.D. Va. Oct. 28, 2011).
The district court held that De’lonta failed to allege deliber-
ate indifference on the part of Appellees sufficient to state an
Eighth Amendment claim. The court explained that
2
Although a dismissal without prejudice is not normally appealable,
because the grounds provided by the district court for dismissal "clearly
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 Workers
Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir. 1993) (alteration &
internal quotation omitted).
DE’LONTA v. JOHNSON 7
De’lonta’s own allegations contradict the conclusion that
Appellees are "persistently denying her treatment," since
De’lonta acknowledges that VDOC has provided mental
health consultations, hormone therapy, and cross-dressing
allowances in accordance with the Standards of Care.
De’lonta II, 2011 WL 5157262, at *5. "The only treatment
described by the Standards of Care that she has not yet
received," the court observed, "is the sex reassignment sur-
gery." Id. But because De’lonta has not been approved for
that surgery, the district court determined that she is "not enti-
tled to" it. Id. In the view of the district court, Appellees are
permissibly denying De’lonta "only her preferred therapy of
surgery." Id. at *5-6. Since De’lonta has not presented "a situ-
ation where there is a total failure to give medical attention or
a policy prohibiting her treatment for GID," the court held
that "her current dissatisfaction with the progress or choice of
treatment" is insufficient to support an Eighth Amendment
claim. Id. at *6.
De’lonta appeals, arguing that the district court erred in dis-
missing her Eighth Amendment claim.3
II.
The sole issue before us is whether De’lonta’s complaint
states a plausible Eighth Amendment claim. We review de
novo a district court’s dismissal under 28 U.S.C. § 1915A for
failure to state a claim, applying the same standards as those
for reviewing a dismissal under Fed. R. Civ. P. 12(b)(6).
Slade v. Hampton Rds. Reg’l Jail, 407 F.3d 243, 248 (4th Cir.
2005); cf. De’lonta I, 330 F.3d at 633. To survive a motion
to dismiss under that rule, a complaint must contain "suffi-
3
The district court also dismissed without prejudice an Equal Protection
claim and a separate Eighth Amendment claim asserting that Nurse Lou
Dixon improperly denied De’lonta’s hormone treatment on one occasion.
Because De’lonta does not press these claims on appeal, we do not address
them here.
8 DE’LONTA v. JOHNSON
cient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’" Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). In assessing the complaint’s plausibility, we
accept as true all the factual allegations contained therein.
Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir.
2010), aff’d sub nom. Coleman v. Court of Appeals of Md.,
132 S. Ct. 1327 (2012). Additionally, we afford liberal con-
struction to the allegations in pro se complaints raising civil
rights issues. Brown v. N.C. Dep’t of Corr., 612 F.3d 720, 722
(4th Cir. 2010).
A.
De’lonta contends she has stated a valid constitutional
claim because the Appellees’ "denial of consideration for sex
reassignment surgery, when viewed against the backdrop of
her medical history and circumstances, constitutes a deliberate
indifference to her serious medical needs in violation of the
Eighth Amendment." Appellant’s Br. at 13.
Appellees counter that De’lonta’s complaint fails to satisfy
Twombly’s plausibility requirement. While conceding that
De’lonta’s need for protection from self-mutilation is a seri-
ous medical need, Appellees assert that because De’lonta has
never been prescribed sex reassignment surgery, she cannot
allege that sex reassignment surgery is a serious medical need
for the purposes of the Eighth Amendment. Because De’lonta
has no constitutional right to her preferred form of treatment,
Appellees suggest that their refusal to provide her sex reas-
signment surgery is a matter of discretion that carries no con-
stitutional implications.
Next, Appellees charge that "[b]y alleging that defendants
have actively participated in providing treatment directed to
[De’lonta’s] urges to self-mutilate, [De’lonta] has necessarily
failed to state a plausible claim that defendants were deliber-
ately indifferent to that risk." Appellees’ Br. at 18. In other
DE’LONTA v. JOHNSON 9
words, Appellees contend that because they have provided
some treatment recognized as effective under the Standards of
Care, their conduct cannot be said to rise to the level of delib-
erate indifference.
Finally, Appellees argue that since De’lonta’s GID treat-
ment is governed by the settlement agreement that arose from
her 1999 lawsuit, she "cannot establish that [Appellees’] acts
or omissions with regard to that treatment rise to the level of
a constitutional violation." Id. at 21.
B.
As we explained in De’lonta I, "[i]n order to 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." 330 F.3d at 634 (internal quotations omitted)
(alterations in original). Only an extreme deprivation, that is,
a "serious or significant physical or emotional injury resulting
from the challenged conditions," or substantial risk thereof,
will satisfy the objective component of an Eighth Amendment
claim challenging the conditions of confinement. Id. The sub-
jective component of such a claim is satisfied by a showing
of deliberate indifference by prison officials. This "entails
something more than mere negligence" but does not require
actual purposive intent. Id. "It requires that a prison official
actually know of and disregard an objectively serious condi-
tion, medical need, or risk of harm." Id. (quoting Farmer v.
Brennan, 511 U.S. 825, 837 (1994)).
C.
Applying this two-prong Eighth Amendment standard, we
first resolve that De’lonta has alleged an objectively serious
medical need for protection against continued self-mutilation.
Indeed, we previously held as much in De’lonta I. Id. at 634
10 DE’LONTA v. JOHNSON
("[P]rison officials have a duty to protect prisoners from self-
destruction or self-injury." (quoting Lee v. Downs, 641 F.2d
1117, 1121 (4th Cir. 1981)). In any case, Appellees concede
this point. Appellees’ Br. at 15.
Next, we conclude that De’lonta’s complaint sufficiently
alleges Appellees’ deliberate indifference to her serious medi-
cal need, and consequently, that the district court’s dismissal
was in error.
There is no dispute that Appellees have, at all relevant
times, been aware of De’lonta’s GID and its debilitating
effects on her. Indeed, since the settlement of De’lonta’s ear-
lier lawsuit, Appellees have provided De’lonta with hormone
treatment, mental health consultations, and have allowed her
to live and dress as a woman. It is also true, as Appellees and
the district court note, that these treatment options do accord
with the first two stages of the triadic protocol established by
the Standards of Care. However, the Standards of Care also
indicate that sex reassignment surgery may be necessary for
individuals who continue to present with severe GID after one
year of hormone therapy and dressing as a woman. App. 16-
17.
De’lonta alleges that, despite her repeated complaints to
Appellees alerting them to the persistence of her symptoms
and the inefficacy of her existing treatment, she has never
been evaluated concerning her suitability for surgery. Instead,
despite their knowledge that De’lonta’s therapy sessions with
Psychologist Lang actually provoked her "overwhelming"
urges to self-castrate, VDOC’s medical staff’s only response
to De’lonta’s requests for surgery was a "request that you
continue to work with Ms. Lang in individual therapy at this
time." These factual allegations, taken as true, state a plausi-
ble claim that Appellees "actually kn[e]w of and disregard-
[ed]" De’lonta’s serious medical need in contravention of the
Eighth Amendment. De’lonta I, 330 F.3d at 634 (quoting Far-
mer, 511 U.S. at 837).
DE’LONTA v. JOHNSON 11
We reject Appellees’ conclusion—one shared by the dis-
trict court—that "[b]y alleging that [Appellees] have actively
participated in providing treatment directed to [De’lonta’s]
urges to self-mutilate, [De’lonta] has necessarily failed to
state a plausible claim that [Appellees] were deliberately
indifferent to that risk." Appellees’ Br. at 18; see De’lonta II,
2011 WL 5157262, at *5. We do, of course, acknowledge that
Appellees have provided De’lonta with some measure of
treatment to alleviate her GID symptoms. But just because
Appellees have provided De’lonta with some treatment con-
sistent with the GID Standards of Care, it does not follow that
they have necessarily provided her with constitutionally ade-
quate treatment. See De’lonta I, 330 F.3d at 635-36; Langford
v. Norris, 614 F.3d 445, 460 (8th Cir. 2010) ("[A] total depri-
vation of care is not a necessary condition for finding a con-
stitutional violation: Grossly incompetent or inadequate care
can [also] constitute deliberate indifference . . . ." (internal
quotation omitted) (second alteration in original)).
By analogy, imagine that prison officials prescribe a
painkiller to an inmate who has suffered a serious injury from
a fall, but that the inmate’s symptoms, despite the medication,
persist to the point that he now, by all objective measure,
requires evaluation for surgery. Would prison officials then be
free to deny him consideration for surgery, immunized from
constitutional suit by the fact they were giving him a painkil-
ler? We think not. Accordingly, although Appellees and the
district court are correct that a prisoner does not enjoy a con-
stitutional right to the treatment of his or her choice,4 the treat-
4
We have explained that in this context the "essential test is one of med-
ical necessity and not simply that which may be considered desirable,"
Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977). In this vein, Appel-
lees and the district court take pains to point out that, absent a doctor’s
recommendation, De’lonta cannot show a demonstrable need for sex reas-
signment 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 GID specialist in the first place.
12 DE’LONTA v. JOHNSON
ment a prison facility does provide must nevertheless be
adequate to address the prisoner’s serious medical need.
Likewise, we find no merit to Appellees’ argument that
De’lonta’s previous settlement with VDOC "logically oper-
ates to refute subsequent Eighth Amendment claims because
the settlement repels any plausible claim of willful indiffer-
ence to the condition." Appellees’ Br. at 22. The mere fact
that VDOC has previously acknowledged De’lonta’s condi-
tion and agreed to provide treatment in no way forecloses the
possibility that its performance under that agreement later
became constitutionally deficient. See Cooper v. Dyke, 814
F.2d 941, 945 (4th Cir. 1987) (stating that "government offi-
cials who ignore indications that a prisoner’s or pretrial
detainee’s initial medical treatment was inadequate can be lia-
ble for deliberate indifference to medical needs.").
We wish to be clear about our holding. We hold only that
De’lonta’s Eighth Amendment claim is sufficiently plausible
to survive screening pursuant to 28 U.S.C. § 1915A. We do
not decide today the merits of De’lonta’s claim. Nor, for that
matter, do we mean to suggest what remedy De’lonta would
be entitled to should she prevail. In our view, the answers to
those questions have no bearing on whether De’lonta has
stated a claim that Appellees have been deliberately indiffer-
ent to her serious medical need by refusing to evaluate her for
surgery, consistent with the Standards of Care.
III.
For the reasons set forth above, we reverse the district
court’s dismissal of De’lonta’s Eighth Amendment claim and
remand the case for further proceedings.
REVERSED AND REMANDED