Case Document 48 Filed 06/271141 Page 1 of 11 PagelD 182 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION RONALD C. HOOD, JR., Plaintiff, v. Case No.: 2: DAVID E. WILKINS and DANIEL MONTALDI, Defendants. MOTION FOR SUMMARY JUDGMENT COMES NOW the Defendants, DAVID E. WILKINS and DANIEL MONTALDI, by and through their undersigned counsel, and, pursuant to Fed. R. Civ. P. 56, hereby ?le this motion for summary judgment. In support, the Defendants state: STATEMENT Plaintiff, RONALD C. HOOD, JR., was civilly committed in accordance with Florida?s Involuntary Civil Commitment of Sexually Violent Predator Act 394.910, Fla. Stat). He is currently a resident at the Florida Civil Commitment Center (hereafter and alleges that he was admitted on October 1, 2000 (Doc. 1). The management of is supervised by the State of Florida Department of Children and Families (hereinafter ?Department") under a contract with GEO Care LLC. Defendant, David E. Wilkins, was the secretary of the Department at the time this action was ?led. 1d. Defendant, Daniel Montaldi, was the Administrator of the Department?s Sexually Violent Predator Program at the time this action was ?led. Id. Plaintiff brings his civil rights complaint alleging that Defendants have violated Plaintiffs ?rst, ?fth, Page 1 ofll Case Document 48 Filed 06/27/14 Page 2 0f 11 PageID 183 eighth and fourteenth amendment rights, by failing to formulate or adopt a policy for transgendered people who are civil committed. 1d. As relief, Plaintiff seeks declaratory and injunctive relief, compensatory damages, and lost wages. Id. ALLEGATIONS Plaintiff alleges in his complaint that he has Gender Identity Disorder. He ?rrther alleges that the Defendants violated his First, Eighth, and Fourteenth Amendment Rights through ?the simple expediency of not formulating nor adopting a policy for the treatment of Transgender People within the Florida Civil Commitment Center?. Id. In addition, he alleges that his Fifth amendment right to Freedom of Expression has been violated; that he has been denied his right to treatment for Gender Identity Disorder by ?Exercise of Unreasonable Professional Judgment by DCF [who is no longer a party to this action]? and by ?Deliberate Indifference to [his] Serious Medical Condition by in violation of his Eighth Amendment rights; and that he has been ?denied [his] Right to Treatment for Gender Identity Disorder via the denial of her Right to Due Process? in violation of his Fourteenth Amendment rights. 1d. THE STATEMENT OF THE RULE 56(e] MATERIAL FACTS l. Plaintiff was received by the Department for civil commitment on October 1, 2000. Id. He was diagnosed with Gender Identity Disorder while at (Exh. A). From March 21 to August 21 of 2013, Plaintiff was placed in the custody of the State of Florida Department of Corrections for possession of child pornography which was discovered by staff. 2. Defendant, David E. Wilkins, was the Secretary of the Department of Children and Page 2 of 11 Case Document 48 Filed 06127114 Page 3 of 11 PagelD 184 Families acting in his of?cial capacity at the time of ?ling of this action (Doc. 1). The Secretary is the head of the Department. Fla. Stat. 3. Defendant, Daniel Montaldi, was the Administrator of the Department?s Sexually Violent Predator Program at the time this action was ?led. 4. Plaintiff ?led numerous grievances requesting treatment for Gender Identity Disorder (hereafter Plaintiff alleges that the Defendants did not express any concern for his which he deemed a ?serious medical condition? (Doc. 1, pg. 3). 5. Plaintiff alleges in his Complaint that the Department has failed to provide therapy for treatment of his GED. (Doc. 1, pg. 3). The Department does not have a policy for transgender treatment and services, and treatment for CD is not part of the Comprehensive Treatment Program provided at (Doc. 1, Exh. A). ARGUMENT THE SUMMARY JUDGMENT STANDARD Summary judgment is proper when the pleadings and sworn statements show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Garrett, 477 US. 317, 322-23 (1986). Summary judgment is also warranted where the nonmoving party ?fails to make a showing suf?cient to establish the existence of an element essential to that party?s case, and on which that party will bear the burden of proof at trial.? Id. at 322. The moving party bears the initial burden of demonstrating an absence of evidence to support the nonmoving party?s case. Id. at 323. Once the moving party meets this burden, the burden shifts to the nonmoving party to present evidence demonstrating a genuine issue of Page 3 of 11 Case Document 48 Filed 06/27/14 Page 4 of 11 PagelD 185 material fact exists. Id. at 324. The mere existence of some alleged factual dispute will not defeat an otherwise properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 248 (l986)(the requirement is that there is no genuine issue of material fact); Celotex, 477 U.S. at 324 (a ?scintilla? of evidence or conclusory allegations is insuf?cient, citing Fed.R.Civ.P. ?Genuine disputes are those in which the evidence is such that a reasonable jury could retum a verdict for the non-movant. For factual issues to be considered genuine, they must have a real basis in the record.? Solliday v. Federal O?icers, 413 Fed.Appx. 206, 207 (1 1?1 Cir. 201]) quoting Mize v. Je?'erson City Bd. of Educ, 93 F.3d 739, 742 (11?11 Cir. 1996); see also Fed.R.Civ.P. 56(e); Matsushita Electric Industrial Co. v. Zenith Radio Corp, 475 U.S. 574, 587 (l986)(there is no genuine issue for trial if record, taken as a whole, would not lead a rational trier of fact to find in favor of non-moving party). The nonmoving party must show more than a ?metaphysical doubt? regarding the material facts. Matsmhiia, 475 U.S. at 536-87. The evidence and reasonable inferences drawn therefrom are viewed in the light most favorable to the nonmoving party; court need not permit a case to go to a jury, however, when the inferences that are drawn from the evidence, and upon which the non-movant relies, are ?irnplausible?.? Cuesia v. School Bd. of Miami-Charlotte County, 285 F.3d 962, 970 (11'11 Cir. 2002), quoting Mize, 93 F.3d at 742 and Matsushita, 475 U.S. at 592. ?Under Federal Rule of Civil Procedure 56(e), af?davits, supporting or opposing summary judgment, must be made on personal knowledge and must set forth facts that would be admissible evidence.? McCaskill v. Ray, 279 Fed.Appx. 913, 914-915 (1 1th Cir. 2003); see also Fed.R.Civ.P. 56(e). lnadmissible hearsay generally ?cannot be considered on a motion for summary judgment?, Mamba v. Deboer, 193 F.3d 1316, 1322 (11? Cir.l999), unless ?the Page 4 ofll Case Document 48 Filed 06/27/14 Page 5 of 11 PagelD 186 statement could be reduced to admissible evidence at trial or reduced to admissible form.? Id. at 1323. In Mamba, the Eleventh Circuit stated: We believe that the courts have used the phrases ?reduced to admissible evidence at trial? and ?reduced to admissible form? to explain that the out-of- eourt statement made to the Witness (the Rule 56(c) af?ant or the deposition dcponent) must be admissible at trial for some purpose. For example, the statement might be admissible because it falls within an exception to the hearsay rule, or does not constitute hearsay at all (because it is not offered to prove the truth of the matter asserted), or is used solely for impeachment purposes (and not as substantive evidence). Id. at 1324 (footnotes omitted). I. CLAIMS FOR DECLARATORY AND INJUNCTIVE RELIEF AGAINST DEF ENDANTS WILKINS AND MONTALDI IN THEIR OFFICIAL CAPACITY Plaintiff seeks declaratory and injunctive relief against the defendants in their of?cial capacity for violation of his constitutional rights; failure to formulate a policy for the treatment of transgender, transsexual and gender nonconforming people; and failure to provide hormone therapy, female clothing, feminine clothing, feminine cosmetics, feminine hygiene items and any transgender accessories the plaintiff requests within reason. Plaintiff seeks preliminary and permanent declaration that the plaintiff would have been eligible for release from within one to two years after anival had the defendants provided the plaintiff with 01]) treatment. Plaintiff seeks preliminary and permanent relief for compensatory damages for the lost wages that the plaintiff could have earned over the course of the past ten plus years. Plaintiff seeks Page 5 ofll Case Document 48 Filed 06127114 Page 6 of 11 PagelD 187 preliminary and permanent order allowing the plaintiff to receive, possess, use and wear female clothing, feminine clothing, feminine cosmetics, feminine hygiene items and any transgender accessories. A. First Amendment claim The defendants understand plaintiff?s ?rst amendment claim to be the failure of the defendants to allow him to wear feminine clothing of his choice. The non-discriminatory policy for the facility is applicable to all residents, not simply the plaintiff. (Ex. B). The policy is in place for to meet the needs of all the male residents. The defendants did not violate the plaintiff?s first amendment rights. Therefore, the plaintiff is not entitled to declaratory or injunctive relief on his ?rst amendment claim. B. Fifth Amendment claim The plaintiff has always been afforded his due process rights. The plaintiff has completed numerous Resident Communication Forms used to request records, treatment or other matters. The defendants have not prevented the plaintiff ?'om exercising this right and have not prevented the staff at from responding to the plaintiff. The defendants did not violate the plaintiff?s ?fth amendment rights. Therefore, the plaintiff is not entitled to declaratory or injunctive relief on his filth amendment claim. C. Eight Amendment claim Plaintiff alleges the defendants were deliberately indifferent to his medical condition, CD. For an inmate to state a cognizable Eighth Amendment deliberate indifference claim, the inmate must assert facts suf?cient to satisfy objective and subjective components, each containing additional requirements. Tayior v. Adams, 221 F.3d 1254, 1258 Cir. 2000), cert. denied, 531U.S. 1077, 121 774, 147 L.Ed.2d 673 (2001). ?Ultimately, there are thus four Page 6 of 11 Case Document 43 Filed 06/27/14 Page 7 of 11 PagelD 188 requirements: an objectively serious need, an objectively insuf?cient response to that need, subjective awareness of facts signaling the need, and an actual inference of required action from those facts." Taylor, 221 .3d at 1258. The "objective component" requires an objectively "serious medical need" and a response so deficient as to constitute "an unnecessary and wanton in?iction of pain". Estelle v. Gamble, 429 U.S. 97, 104-105, 97 285, 291, 50 L.Ed.2d 251 (1976); see also Adams v. Poag, 61 F.3d 1537, 1543-4401th Cir. 1995). The alleged misconduct must have been objectively harmful enough to be a constitutional violation, Wilson v. Seller, 501 US. 294, 303, 111 2321, 2326, 115 L.Ed.2d 271 (199]) citing Rhodes v. Chapman, 452 U.S. 337, 101 2392, 69 L.Ed.2d 59 (1981), viewed from "contemporary standards of decency." Estelle, 429 US. at 103. In a medical context, deliberate indifference to an inmate?s ?serious? medical needs in a prison constitutes a violation of the Eighth Amendment. Estelle, 429 US. at 104 (citations omitted). Not every claim by a prisoner alleging inadequate medical treatment stated a violation of the Eighth Amendment. Id. at 105. ?Medical treatment violates the eighth amendment only when it is ?so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental faimess.?? Ham's v. Thigoen, 941 F.2d 1495, 1505 (l ld? Cir. 1991) (citations omitted). Objectiver serious medical needs generally require immediate medical attention. Youmans v. Gagnon, 626 F.3d 557, 564 (1 1th Cir. 2010), citing Hill v. Deltalb Regional Youth Del. Cat, 40 F.3d 1176, 1187 (11th objectively serious medical need must have been diagnosed by a physician as requiring treatment or be so obvious that even a lay person Defendants recognize the plaintiff is not an inmate in a correctional institution. The defendants analogize the serious medical condition claim here to that of cases that arise in the context of con?ned individuals that are not able to voluntarily leave. Page 7 of 11 Case Document 48 Filed 0627/14 Page 8 of 11 PagelD 189 would easily see the need for a doctor). ?[T]he medical need must be one that, if left unattended, pos[es] a substantial risk of serious harm.? Brown v. Johnson, 387 F.3d 1344, 1351 (1 1th Cir. 2004); Kelley v. Hicks, 400 .3d 1282, 1284 (1 1th Cir. 2005)(need must be such that, leaving it untreated creates a health risk so grave that it violates contemporary standards of decency); RT. v. Gross, 298 F. Supp. 2d 289, 295 (ND. N.Y. 2003)(a condition of urgency which, if not adequately treated, would produce death, degeneration or extreme pain). The objective component also requires proof that the alleged response was objectively so ?sufficiently serious? as to constitute denial of ?the minimal civilized measure of life?s necessities.? Taylor, 221 F.3d at 1257, quoting Wilson v. Setter, 501 U.S. at 298. Under the ?subjective components?, the evidence must demonstrate both that the defendant was ?aware of facts from which the inference could be drawn that a substantial risk of serious harm exists?, and that they did ?draw the inference?. Farmer, 51 1 US. at 837. Only deliberate indifference offends evolving standards of decency suf?cient to violate the Constitution. Estelle, 429 US. at 106. Finally, the evidence submitted by the plaintiff does not de?nitely show that the plaintiff has There are references in the court file of the plaintiff being diagnosed or having However, there are also references that show the staff at disagreed with said diagnosis. See for example, Doc. 1, Ex. C, at 21. This difference of opinion did not lead the defendants to believe the plaintiff suffered from GED. If he does, the defendants do not concede that GLD is a serious medical condition as it relates to the plaintiff. There is no evidence submitted by the plaintiff that he is or was at risk of a substantial risk of serious harm. This is unlike the case in the First Circuit where a civilly committed individual diagnosed with 01]) did receive hormone treatment. Battista v. Clarke, 645 F.3d 449,453 Cir. 2011). The defendants in that case placed the treatment on hold and Battista Pagc80fll Case Document 48 Filed 06127114 Page 9 of 11 PagelD 190 attempted to mutilate herself, putting the defendants on notice of the risk of serious harm. Id. at 454. In this case, there is no evidence that the plaintiff has attempted to mutilate himself or cause himself any other harm as a result of not having a policy or treatment for Thus, summaryjudgment should enter as to the defendants. D. Fourteenth Amendment claim In terms of the Fourteenth Amendment substantive due process violation, Plaintiff must prove intentional or deliberate deprivation of life, liberty or property; negligence is insuf?cient. Daniels v. Williams, 474 US. 327, 328 (1986) (due process ?is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty or property"). Plaintiff cannot demonstrate intentional or deliberate misconduct by the defendants. The defendants did not violate the plaintiff?s fourteenth amendment rights. Therefore, the plaintiff is not entitled to declaratory or injunctive relief on his fourteenth amendment claim. E. Plaintiff seeks preliminary and permanent declaration that the plaintiff would have been eligible for release from within one to two years after arrival had the defendants provided the plaintiff with CD treatment and relief for compensatory damages for the lost wages that the plaintiff could have earned over the course of the past ten plus years. Plaintiff has submitted no evidence that the defendants? actions or inactions increased his length of stay at Nor has plaintiff submitted any evidence, that had he been released within those one or two years, he had the ability to earn any wages and the amount of said wages. The defendants did not cause the plaintiff to remain at the beyond one to two years. Therefore, the plaintiff is not entitled to declaratory or injunctive relief on this claim. Page 9 ofll Case Document 48 Filed 06/27/14 Page 10 of 11 PagelD 191 Accordingly, the Defendants respectfully request that an order be issued granting summary judgment in favor of the Defendants on all claims within Plaintiff?s Complaint. Dated: June 27, 2014 Respectfully submitted, PAMELA JO BONDI ATTORNEY GENERAL Isl Darvl Manning Daryl Manning Assistant Attorney General Florida Bar No. 147321 Of?ce of the Attorney General General Civil Litigation - Tampa Bureau 501 E. Kennedy Boulevard, Suite 1100 Tampa, FL 33602-5242 TEL (813) 233-2880 FAX (813) 233-2886 Counsel for Defendant(s) Page 10 of 11