United States District Court, E.D. California
FINDINGS AND RECOMMENDATION REGARDING DEFENDANTS'
MOTION TO DISMISS THE COMPLAINT [ECF NO. 23]
Lyralisa Lavena Stevens is appearing pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C.
before the Court is Defendants' motion to dismiss, filed
January 11, 2018.
action is proceeding against Defendants Jeffrey Beard,
Christopher Podratz, Godwin Ugwueze, John Choy, Kim Cornish,
Clarence Cryer, Felix Igbinosa, Anthony Enenmoh, Trachelle
Hurtado, Renee Kanan, Jeffrey Carrick, Scott Kernan, J.
Lewis, and R. Coffin for deliberate indifference to a serious
medical need for failure to provide transgender surgery.
previously stated, on January 11, 2018, Defendants filed a
motion to dismiss, along with a separate request for judicial
notice. (ECF Nos. 23, 24.) Plaintiff did not file an
opposition and the time to do so has expired. Therefore,
Defendants' motion is deemed submitted for review without
oral argument. Local Rule 230(1).
motion to dismiss, based on res judicata grounds, is properly
made under Federal Rule of Civil Procedure 12(b)(1).
Gupta v. Thai Airways Intern., Ltd., 487 F.3d 759,
763 (9th Cir. 2007). However, the court applies California
law on claim preclusion to cases brought in federal court
under 42 U.S.C. § 1983. “Congress has specifically
required all federal courts to give preclusive effect to
state-court judgments whenever the courts of the State from
which the judgments emerged would do so.” Allen v.
McCurry, 449 U.S. 90, 96 (1980).
motion to dismiss brought pursuant to Rule 12(b)(6) tests the
legal sufficiency of a claim, and dismissal is proper if
there is a lack of a cognizable legal theory or the absence
of sufficient facts alleged under a cognizable legal theory.
Conservation Force v. Salazar, 646 F.3d 1240,
1241-42 (9th Cir. 2011) (quotation marks and citations
omitted). In resolving a 12(b)(6) motion, a court's
review is generally limited to the operative pleading.
Daniels-Hall v. National Educ. Ass'n, 629 F.3d
992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d
903, 910 (9th Cir. 2007); Schneider v. California Dept.
of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
that is plausible on its face. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)) (quotation marks
omitted); Conservation Force, 646 F.3d at 1242;
Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th
Cir. 2009). The Court must accept the factual allegations as
true and draw all reasonable inferences in favor of the
non-moving party. Daniels-Hall, 629 F.3d at 998;
Sanders, 504 F.3d at 910; Morales v. City of Los
Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000).
litigants are entitled to have their pleadings liberally
construed and to have any doubt resolved in their favor.
Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th
Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090,
1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338,
342 (9th Cir. 2010).
Summary of Plaintiff's Complaint
is a male-to-female transgender inmate who alleges and
contends that she was denied sex-reassignment surgery in
violation of the Eighth Amendment.
has repeatedly received recommendations for sexual
reassignment surgery from California Department of
Corrections and Rehabilitation (CDCR) doctors, psychologists,
and state appointed specialists. In spite of such
recommendations, between 2007 and 2016 the Defendants have
repeatedly created dilatory hormonal therapy programs that
provide only hormones without the medically necessary
contends that her doctors warned Defendants that her brain
tumor will return if she does not receive sex-reassignment
October 3, 2016, Defendant Dr. Carrick (Deputy Medical
Executive of Utilization Management at California
Correctional Health Care Services) sent Defendants Podratz,
Ugwueze, Choy, Cornish, Cryer, Igbinosa, Enenmoh, Hurtado,
and Kanan, the Headquarters Utilization Management Committee
determination letter which denied Plaintiff's request for
sex-reassignment surgery because her current treatment for
gender dysphoria provided significant relief and were
adequate to treat her condition.
Request for Judicial Notice
request the Court take judicial notice of the following
records and documents:
1. Stevens v. Cate, No. 2:12-cv-0239 KJN P (E.D.
Cal.), Amended Complaint, April 6, 2012, ECF No. 10
(Defs.' Ex. A);
2. In re Lyralisa Lavena Stevens, California Court
of Appeals First Appellate District Division Two, No.
A126466, Order, September 21, 2011 (Defs.' Ex. B);
3. In re Lyralisa Lavena Stevens, Supreme Court of
California, No. S196925, Order, December 14, 2011 ...