Philip Walker Rosati v. IGBINOSO , Chief Medical Officer, Pleasant Valley State Prison

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
P HILIP W ALKER R OSATI,
Plaintiff-Appellant,
v.
IGBINOSO , Chief Medical Officer,
Pleasant Valley State Prison; S USAN
L. HUBBARD, Director of California
Department of Corrections,
Defendants-Appellees.
No. 13-15984
D.C. No.
1:12-cv-01213-
RRB
OPINION
Appeal from the United States District Court
for the Eastern District of California
Ralph R. Beistline, Chief District Judge, Presiding
Argued and Submitted
June 8, 2015—San Francisco, California
Filed June 26, 2015
Before: Barry G. Silverman, Ronald M. Gould,
and Andrew D. Hurwitz, Circuit Judges.
Per Curiam Opinion

-- 1 of 7 --

2 R OSATI V . IGBINOSO
SUMMARY*
Prisoner Civil Rights
The panel reversed the district court’s dismissal of a pro
se complaint brought by a California state prisoner pursuant
to 42 U.S.C. § 1983 alleging that prison officials were
deliberately indifferent to the prisoner’s serious medical
needs, in violation of the Eighth Amendment, when they
refused to provide sexual reassignment surgery.
The panel held that the allegations in the complaint were
sufficient to state a claim. The panel held that plaintiff
plausibly alleged that her symptoms (including repeated
efforts at self-castration) were so severe that prison officials
recklessly disregarded an excessive risk to her health by
denying sexual reassignment surgery solely on the
recommendation of a physician’s assistant with no
experience in transgender medicine. The panel expressed no
opinion on whether sexual reassignment surgery was
medically necessary for plaintiff or whether prison officials
have other legitimate reasons for denying her that treatment.
The panel further held that on remand, the district court
should address the merits of plaintiff’s Equal Protection
Claim in the first instance.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

-- 2 of 7 --

R OSATI V . IGBINOSO 3
COUNSEL
Jon W. Davidson, Peter C. Renn (argued), Lambda Legal
Defense and Education Fund, Inc., Los Angeles, California;
Alison Hardy, Prison Law Office, Berkeley, California, for
Plaintiff-Appellant.
Kamala D. Harris, Attorney General, Jonathan L. Wolff,
Senior Assistant Attorney General, Thomas S. Patterson,
Supervising Deputy Attorney General, Jose A. Zelidon-
Zepeda and Neah Huynh (argued), Deputy Attorneys
General, San Francisco, California, for Defendants-
Appellees.
Cori A. Lable, Daniel V. McCaughey, Michael T. Packard,
and Kevin P. Budris, Ropes & Gray LLP, Boston,
Massachusetts, for Amicus Curiae World Professional
Association for Transgender Health.
OPINION
PER CURIAM:
Philip Walker Rosati (now known as Mia Rosati) is a
transgender inmate in the California prison system.1 Rosati
filed a pro se 42 U.S.C. § 1983 complaint claiming that
prison officials violated the Eighth Amendment through
deliberate indifference to her serious medical needs. Rosati
alleges that she suffers from severe gender dysphoria for
1 Like the parties, we refer to Rosati in the feminine.

-- 3 of 7 --

4 R OSATI V . IGBINOSO
which sexual reassignment surgery (“SRS”) is the medically
necessary treatment, but that prison officials refuse to
provide the surgery. The district court dismissed the
complaint at screening without leave to amend for failure to
state a claim. Rosati, now represented by counsel, appeals.
We have jurisdiction under 28 U.S.C. § 1291; we reverse the
dismissal and remand for further proceedings.
In determining whether a complaint should be dismissed
for failure to state a claim under the Prison Litigation Reform
Act, 28 U.S.C. § 1915(e)(2)(B)(ii), we apply the familiar
standard of Federal Rule of Civil Procedure 12(b)(6). See
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012).
“[A] complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on
its face.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.
2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))
(internal quotation marks omitted).
Deliberate indifference to the serious medical needs of
an inmate is “cruel and unusual punishment” under the
Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97,
104–06 (1976). To demonstrate deliberate indifference,
“plaintiffs must show that [prison officials] were
(a) subjectively aware of the serious medical need and
(b) failed to adequately respond.” Conn v. City of Reno, 591
F.3d 1081, 1096 (9th Cir. 2010), vacated, 131 S. Ct. 1812
(2011), reinstated in relevant part, 658 F.3d 897 (9th Cir.
2011). An inmate challenging denial of treatment must
allege that the denial “was medically unacceptable under the
circumstances,” and made “in conscious disregard of an
excessive risk to [the inmate]’s health.” Jackson v.
McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).

-- 4 of 7 --

R OSATI V . IGBINOSO 5
1. “A district court should not dismiss a pro se complaint
without leave to amend unless ‘it is absolutely clear that the
deficiencies of the complaint could not be cured by
amendment.’” Akhtar, 698 F.3d at 1212 (quoting Schucker
v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988) (per
curiam)). At oral argument, the state defendants conceded
that the district judge erred by dismissing without leave to
amend. This concession alone justifies reversal. But, even
absent the concession, we conclude that the complaint,
although not drafted with the skill and brevity expected of
counsel, stated an Eighth Amendment claim upon which
relief could be granted. See id. (noting that the court has “an
obligation where the petitioner is pro se, particularly in civil
rights cases, to construe the pleadings liberally and to afford
the petitioner the benefit of any doubt” (internal quotation
marks omitted)).
2. Rosati’s complaint plausibly alleges that she has
severe gender dysphoria, citing repeated episodes of
attempted self-castration despite continued hormone
treatment.2 Rosati also alleges that the medically accepted
treatment for her dysphoria is SRS, supporting that
allegation with copious citations to the World Professional
Association for Transgender Health (“WPATH”) Standards
of Care.3 Rosati plausibly alleges that prison officials were
2 For purposes of this appeal, the state conceded that gender dysphoria
is a serious medical condition.
3 The state’s argument that the WPATH standards are not fully
accepted by the medical community is unavailing because it relies on
matters outside the complaint. “When reviewing a motion to dismiss,

-- 5 of 7 --

6 R OSATI V . IGBINOSO
aware of her medical history and need for treatment, but
denied the surgery because of a blanket policy against SRS.
Indeed, the state acknowledged at oral argument that no
California prisoner has ever received SRS. See, e.g., Colwell
v. Bannister, 763 F.3d 1060, 1063 (9th Cir. 2014) (holding
that the “blanket, categorical denial of medically indicated
surgery solely on the basis of an administrative policy that
one eye is good enough for prison inmates is the paradigm
of deliberate indifference” (internal quotation marks
omitted)).
Even absent such a blanket policy, Rosati plausibly
alleges her symptoms (including repeated efforts at self-
castration) are so severe that prison officials recklessly
disregarded an excessive risk to her health by denying SRS
solely on the recommendation of a physician’s assistant with
no experience in transgender medicine. See Pyles v. Fahim,
771 F.3d 403, 412 (7th Cir. 2014) (explaining that “if the
need for specialized expertise . . . would have been obvious
to a lay person, then the ‘obdurate refusal’ to engage
specialists permits an inference that a medical provider was
deliberately indifferent to the inmate’s condition”);
Hoptowit v. Ray, 682 F.2d 1237, 1252–53 (9th Cir. 1982)
(“Access to the medical staff has no meaning if the medical
staff is not competent to deal with the prisoners’
problems.”), abrogated on other grounds by Sandin v.
Conner, 515 U.S. 472 (1995).
Although Rosati lacks a medical opinion recommending
SRS, she plausibly alleges that this is because the state has
we consider only allegations contained in the pleadings, exhibits
attached to the complaint, and matters properly subject to judicial
notice.” Akhtar, 698 F.3d at 1212 (internal quotation marks omitted).

-- 6 of 7 --

R OSATI V . IGBINOSO 7
failed to provide her access to a physician competent to
evaluate her. See De’lonta v. Johnson, 708 F.3d 520, 526
n.4 (4th Cir. 2013) (“Appellees . . . take pains to point out
that, absent a doctor’s recommendation, De’lonta cannot
show a demonstrable need for sex reassignment 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
[gender dysphoria] specialist in the first place.”).
3. We express no opinion on whether SRS is medically
necessary for Rosati or whether prison officials have other
legitimate reasons for denying her that treatment. But, like
other courts that have considered similar actions, we hold
that the allegations in Rosati’s complaint are sufficient to
state a claim. See, e.g., Kosilek v. Spencer, 774 F.3d 63, 91
(1st Cir. 2014) (en banc); De’lonta, 708 F.3d at 525–27;
Norsworthy v. Beard, 2015 WL 1478264, at *7–9 (N.D. Cal.
Mar. 31, 2015); Soneeya v. Spencer, 851 F. Supp. 2d 228,
245–52 (D. Mass. 2012); see also Fields v. Smith, 653 F.3d
550, 554–59 (7th Cir. 2011) (affirming a district court’s
determination that a statute barring hormone treatment and
gender reassignment surgery for prisoners was
unconstitutional).4
REVERSED AND REMANDED.
4 Rosati also asserted an Equal Protection claim, which the district
court dismissed without explanation. That court should address the
merits of this claim in the first instance on remand. See Akhtar, 698 F.3d
at 1212–13 (“To comply with the law of this circuit, the district court
was required to explain the deficiencies in Akhtar’s first amended
complaint.”).

-- 7 of 7 --