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Philip Rosati v. Igbinoso

April 26, 2013

PHILIP ROSATI, PLAINTIFF,
v.
IGBINOSO, CHIEF MEDICAL OFFICER, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION; AND SUSAN HUBBARD, SECRETARY, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, DEFENDANTS.



The opinion of the court was delivered by: Ralph R. Beistline United States District Judge

DISMISSAL ORDER

Philip Rosati, a state prisoner appearing pro se and in forma pauperis, filed a civil rights Complaint under 42 U.S.C. § 1983.*fn1 Rosati is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the R. J. Donovan Prison, Facility 3, San Diego.

I. SCREENING REQUIREMENTS

This Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity.*fn2 This Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief."*fn3

Likewise, a prisoner must exhaust all administrative remedies as may be available,*fn4 irrespective of whether those administrative remedies provide for monetary relief.*fn5

In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief."*fn6 "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation."*fn7 Failure to state a claim under § 1915A incorporates the familiar standard applied in Federal Rule of Civil Procedure 12(b)(6), including the rule that complaints filed by pro se prisoners are to be liberally construed, affording the prisoner the benefit of any doubt, and dismissal should be granted only where it appears beyond doubt that the plaintiff can plead no facts in support of his claim that would entitle him or her to relief.*fn8

This requires the presentation of factual allegations sufficient to state a plausible claim for relief.*fn9 "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'"*fn10 Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true.*fn11 "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."*fn12

II. GRAVAMEN OF THE COMPLAINT

Rosati alleges that he is a transsexual male suffering from Gender Identity Disorder ("GID). Rosati further alleges that he requested gender reassignment surgery,*fn13 but was refused because CDCR policy precludes evaluation of the extent of GID and, if considered medically necessary, gender reassignment surgery.*fn14

According to Rosati his GID causes him to suffer serious adverse psychological distress. Rosati complains that the refusal to complete his gender reassignment surgery constitutes deliberate indifference to a serious medical condition. Rosati seeks a psychiatric examination by a GID expert to assist in determining whether his GID condition is extreme and, if considered medically necessary, sexual reassignment surgery.

III. DISCUSSION

In denying relief at the final level of administrative review the Director held:

DIRECTOR'S LEVEL DECISION:

Appeal is denied.

ISSUES:

Your CDCR 602-HC indicated you were diagnosed with Gender Identity Dysphoria (GID) and you were a transgender (male to female) individual; you stated on July 19, 2010, you submitted a CDC 7362, Health Care Services Request Form, requesting to see your primary care provider (PCP) to request sex reassignment surgery (SRS) or surgery to remove your penis and reposition your urethra so you could sit to urinate without making a mess; you indicated your request was ignored; as of July 29, 2010, you had not seen a nurse or a PCP; you also reported a history of prior self-mutilation attempts and you felt having male genitalia while having other physical characteristics of a woman, had led to significant psychological distress; you believed SRS, along with hormonal treatment, and living as a female was the only appropriate measures for GID; and you claimed you were being denied key aspects of therapy for you condition; and you believed CDCR policy was discriminatory against transgender individuals.

You requested the following:

* An immediate appointment with a PCP and documentation of ...


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