Gordon v. Inslee

• Court: District Court, W.D. Washington
• Decided: April 10, 2023
• Docket: 3:21-cv-05802
• Status: Unknown

Opinion

5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE

7 RICKY D. GORDON, NO. 21-5802-BJR-DWC Plaintiff, 8 ORDER ADOPTING REPORT AND v. RECOMMENDATION AND 9 JAY INSLEE, et al., DISMISSING COMPLAINT Defendant 10

11 I. INTRODUCTION 12 This matter comes before the Court on the Report and Recommendation (“R&R”) of U.S. 13 Magistrate Judge David W. Cristel, which recommends granting Defendants’ Motion for 14 Summary Judgment and dismissing this action. Dkt. Nos. 42, 33. Plaintiff Deanna Lynn Gordon, 15 formerly known as Ricky or Ricki Gordon, is a transgender female inmate currently incarcerated 16 at the Monroe Correctional Complex, Twin Rivers Unit (“MCC-TRU”). She has asserted claims 17 against a number of Washington State Department of Corrections (“DOC”) officials and other 18 Defendants under 42 U.S.C. § 1983, alleging Eighth and Fourteenth Amendment violations. 19 Broadly construed, Plaintiff claims that Defendants have failed to provide constitutionally 20 required treatment for her diagnosed Gender Dysphoria (“GD”), and more specifically, have 21 unduly delayed her gender confirming surgery, which is currently scheduled to take place in 22 October 2023. Plaintiff also claims she is unsafe in a male prison, and that she has limited access 23

24 ORDER ADOPTING REPORT AND RECOMMENDATION

25 2 compliance with the treatment plans approved by DOC’s Gender Dysphoria Care Review 3 Committee; and (2) directing that she be transferred to a female facility. 4 Having reviewed the R&R, the Motion for Summary Judgment and the briefs and exhibits 5 filed in support of and in opposition to that motion, Plaintiff’s Objections to the R&R, and 6 Defendants’ Response to those Objections, the Court finds and rules as follows. 7 II. BACKGROUND 8 The R&R contains a thorough recitation of the factual and procedural background of this 9 case, which need not be repeated in full here. See R&R at 2-10. In sum, Plaintiff first entered 10 DOC custody on December 29, 2015, and is currently housed at the MCC-TRU. Plaintiff is 11 serving a sentence for one count of first degree rape of a child, first degree child molestation, and

12 two counts of possession of depictions of a minor engaged in sexually explicit conduct, with an 13 earned released date of 2039. Wofford Decl., Dkt. No. 34, ¶ 5. The victim of Plaintiff’s crimes 14 was the six-year-old daughter of Plaintiff’s ex-wife and criminal co-defendant, Rose Gordon, who 15 is serving a sentence for rape of a child in the first degree and other related crimes at the 16 Washington Corrections Center for Women (“WCCW”). Headley Decl., Dkt. No. 35, ¶ 5. 17 After entering DOC custody, on February 12, 2016, Plaintiff was diagnosed with Gender 18 Dysphoria. Since then, she has sought and received mental health and hormone therapy treatment 19 pursuant to the DOC’s Gender Dysphoria Protocol (“Protocol”), as recommended by her Gender 20 Dysphoria Care Review Committee (“GD-CRC”). See Clark Decl. and Exs. thereto. The R&R 21 outlines both the DOC’s Protocol, and the history of Plaintiff’s treatment subject to that Protocol.

22 See R&R at 3-8. Most relevant to Plaintiff’s claims here, the GD-CRC initially denied Plaintiff’s 23

25 2 physical health and the risk of complications from the procedure. However, the GD-CRC 3 reconsidered her request and ultimately issued an approval on March 8, 2021. Plaintiff is 4 scheduled to undergo GCS in October 2023. Clark Decl., ¶9. Plaintiff’s claims are based in part 5 on what she says is inadequate treatment of her GD, and specifically a claimed delay in 6 scheduling her surgery subsequent to the March 8, 2021 approval. 7 Defendants disagree there has been undue or avoidable delay in Plaintiff’s GD treatment, 8 citing the thorough GD-CRC review process (outlined in detail in the R&R) and the challenges to 9 providing GCS, particularly in a prison context and during a global pandemic: 10 [A]ccess to community surgical providers who offer gender affirming care is very limited. That limited number of providers is even less for those who are willing to 11 accept inmate patients. This resulted in long wait times for initial appointments with the surgical provider and then further long wait times for the surgeon’s 12 availability to perform the actual surgery. During the recent pandemic, those wait times were extended even more as there was a long period of time when those 13 providers were not able to perform gender affirming surgeries due to public health mandates. 14 Defs.’ Mot. Summ. Jdgmt. at 9; see also R&R at 3-8. 15 Plaintiff is also challenging her placement in a male facility, claiming that she has been 16 subjected to threats, sexual harassment, and assault by other inmates. In recognition of these 17 concerns, Plaintiff has been given her own cell, and several accommodations have been made for 18 her privacy and safety, including alternative times for her to shower in private. She claims, 19 however, that her cell remains the only private toilet she has access to, and that she is therefore 20 unable to take advantage of activities and recreation outside her cell. She also complains that 21 alternative shower times intended to give her privacy are inadequate. Plaintiff has requested 22 transfer to the WCCW, which is the only female DOC facility in Washington, or in the 23

25 2 transfer her to a female facility is a violation of her constitutional rights. 3 According to Defendants, Plaintiff’s housing assignment is governed by the Prison Rape 4 Elimination Act (PREA) standards, which provide for, among other things, assessment at intake 5 of an inmate’s risk of being sexually abused, and semiannual review of an at-risk inmate’s 6 housing placement. Wofford Decl., ¶ 3. They claim they have taken measures to ensure the safety 7 of Plaintiff, who has not filed “any substantiated PREA allegations.” Defs.’ Rep. at 6. In addition, 8 Defendants claim there are 31 other transgender female inmates currently housed at MCC-TRU, 9 and that “there is no evidence of systemic violence or harassment against these individuals 10 because of their transgender status.” Wofford Decl., ¶ 8; Defs.’ Rep. at 6. 11 Defendants have considered but denied Plaintiff’s repeated requests for transfer to

12 WCCW. Wofford Decl., ¶ 6. They cite Plaintiff’s record of sexually predatory behavior against 13 female victims, and the fact that Rose Gordon, Plaintiff’s ex-wife and co-defendant, is housed at 14 WCCW and has submitted a “keep separate” request out of a claimed fear for her safety. See 15 Headley Decl., ¶¶ 4-11; Ex. A to Headley Decl., at 3 (“Keep separate request” stating Plaintiff 16 “poses a significant risk to the safety of Rose Gordon . . . The facility is not able to address the 17 safety risk against Rose Gordon if [Plaintiff] were to transfer to the facility.”). Defendants claim 18 they have also “pursued out of state placement options in other women’s facilities,” but so far 19 have been unable to identify an out of state women’s facility that will accept Plaintiff. Wofford 20 Decl., ¶ 4. They aver “[i]n the event none of these states are willing to take Gordon for out of state 21 placement, DOC will engage with other states and continue to pursue other housing alternatives

22 that are appropriate.” Id., ¶ 7. 23

25 2 A. Standard for Summary Judgment and Review of R&R 3 This Court “may accept, reject, or modify, in whole or in part, the findings or 4 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party timely 5 objects to a magistrate judge’s report and recommendation, the court is required to “make a de 6 novo determination of those portions of the [R&R] to which objection is made.” 28 U.S.C. § 7 636(b)(1). 8 The Court adopts the standards, governing summary judgment and claims under 42 U.S.C. 9 § 1983, as accurately laid out in the R&R. See R&R at 10-12. 10 B. Fourteenth Amendment: Equal Protection and Due Process Claims 11 1. Equal Protection

12 The R&R concludes that Plaintiff’s Equal Protection claims should fail because “Plaintiff 13 has submitted no evidence showing a discriminatory motive for either the alleged delay in 14 scheduling her GCS procedure or the denial of her requested transfer to WCCW.” R&R at 18. 15 Defendants, by contrast, have submitted evidence supporting plausible, constitutionally 16 permissible explanations for their actions. Nothing in Plaintiff’s Objections calls the soundness of 17 the R&R’s conclusion into question, and the Court agrees that Plaintiff’s Equal Protection Claims 18 should be dismissed. 19 Plaintiff here has failed to provide any specific allegations, let alone evidence, that any of 20 Defendants’ actions were taken “with an intent or purpose to discriminate against the plaintiff 21 based upon membership in a protected class” as a transgender female. Furnace v. Sullivan, 705

22 F.3d 1021, 1030 (9th Cir. 2013) (citation omitted). To the contrary, in her Objections to the R&R, 23

25 2 from a male prison, even though some having sex crimes and a lot of current sexual infractions 3 while in prison.” Obj. at 2 (sic); see also id. at 5 (“The DOC has never gave a reasonable cause 4 not to have ever set up a transfer out of state since 2016 and after they started sending other 5 trans-women to a female prison and still would not set up a out of state transfer maid in a 6 violation of equal treatment do to discrimination.”) (sic, emphasis added). Plaintiff’s claim—that 7 she is being discriminated against because other transgender women have been transferred and 8 she has not—misapprehends the nature of the right that the Fourteenth Amendment protects. A 9 Fourteenth Amendment discrimination claim requires Defendants to have acted with animus 10 towards her based upon her membership in a protected class. Lee v. City of Los Angeles, 250 F.3d 11 668, 686 (9th Cir. 2001) (citations omitted). Plaintiff’s admission that Defendants have approved

12 transfer of other transgender women to female facilities, particularly in the absence of any direct 13 evidence of discriminatory intent, is tantamount to a concession that such animus here is lacking. 14 Courts have recognized that “an equal protection claim can in some circumstances be 15 sustained even if the plaintiff has not alleged class-based discrimination, but instead claims that 16 she has been irrationally singled out as a so-called ‘class of one.’” Gerhart v. Lake Cnty., Mont., 17 637 F.3d 1013, 1021 (9th Cir. 2011) (citations omitted). Even then, however, a plaintiff must 18 allege and prove that the defendant’s actions are motivated by a discriminatory intent, and taken 19 in the absence of a rational basis. Id. The evidence here clearly demonstrates a rational basis for 20 Defendants’ denial of Plaintiff’s request for transfer to WCCW: safety and security concerns 21 about Plaintiff and her co-defendant being housed in the same facility, based in part on the nature

22 of the crimes they committed together, and in part on Rose Gordon’s “keep separate” request. See 23

25 2 considerations that require a court’s deference. See Bell v. Wolfish, 441 U.S. 520, 540 (1979) (“In 3 determining whether restrictions or conditions are reasonably related to the Government’s interest 4 in maintaining security and order and operating the institution in a manageable fashion, courts 5 must heed our warning that ‘[s]uch considerations are peculiarly within the province and 6 professional expertise of corrections officials, and, in the absence of substantial evidence in the 7 record to indicate that the officials have exaggerated their response to these considerations, courts 8 should ordinarily defer to their expert judgment in such matters.’”) (citing Pell v. Procunier, 417 9 U.S. 817, 827 (1974)). There is no evidence in the record—let alone “substantial” evidence—that 10 Defendants’ stated reasons for denying Plaintiff’s transfer request to WCCW are pretextual or 11 “exaggerated.”

12 The evidence indicates that Defendants will continue to monitor Plaintiff’s safety in 13 accordance with PREA standards, and are making efforts to find a women’s facility out of state 14 that will accept the Plaintiff. Wofford Decl., ¶¶ 7-8. Plaintiff’s mere “belief” that Defendants are 15 acting with improper motive, in the absence of any evidence, is insufficient to withstand summary 16 judgment. See Crawford-El v. Britton, 523 U.S. 574, 598 (1998) (to withstand summary 17 judgment, plaintiff must “‘put forward specific, nonconclusory factual allegations’ that establish 18 improper motive.”). Plaintiff’s Equal Protection claim is therefore dismissed. 19 2. Due Process1 20 The Due Process Clause protects prisoners from deprivations of life, liberty, or property 21 without due process of law. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a

22 1 While Plaintiff does not expressly refer to the Due Process clause, she does repeatedly claim violations of her 23 Fourteenth Amendment rights; the R&R was correct in liberally construing her claim to include Due Process.

25 2 property interest for which the protection is sought. See Ingraham v. Wright, 430 U.S. 651, 672 3 (1977). In the prison context, such liberty interest is interpreted narrowly, and the Supreme Court 4 has concluded that the Constitution provides no liberty interest in, among other things, remaining 5 in the general population, see Sandin v. Conner, 515 U.S. 472, 485-86 (1995); in staying at a 6 particular institution, see Meachum, 427 U.S. at 225-27; or in remaining in a prison in a particular 7 state, see Olim v. Wakinekona, 461 U.S. 238, 245-47 (1983). Although Plaintiff does not 8 expressly invoke the Due Process Clause, the R&R recommends dismissal of any due process 9 claim Plaintiff is attempting to assert, because “[p]risoners have no liberty interest in avoiding 10 being transferred to another prison, or to be housed in a particular institution.” R&R at 16 11 (citations omitted).

12 In addition to failing to assert a liberty interest, Plaintiff has also failed to demonstrate that 13 she has been denied any process she might be due. She does not challenge the DOC’s Gender 14 Dysphoria Protocol or claim that the Gender Dysphoria Care Review Committee failed to follow 15 that Protocol. Plaintiff’s “belief” that treatment has been unduly delayed, in the face of substantial 16 evidence of Defendants’ efforts to provide medically appropriate and constitutionally required 17 care, is inadequate. See R&R at 3-8; Exs. C, D, & E to Clark Decl. (hundreds of pages including 18 mental health records, medical encounter provider notes, consultation records related to GD 19 treatment). Defendants have also submitted significant detail regarding their housing and safety 20 protocols for transgender inmates, stating Plaintiff’s request for transfer to WCCW is periodically 21 reviewed. See Wofford Decl. As noted, “transfer requests have been denied due to multiple safety

22 concerns including her co-defendant’s concerns of continued abuse, the inability to ensure that the 23

25 2 to complete Court ordered treatment.” Id., ¶ 6. Defendants’ evidence demonstrates that they 3 continue to seek Plaintiff’s transfer to an out of state facility, to date without luck. Id. ¶ 7. While 4 Plaintiff may be dissatisfied with the results of these efforts, there is no evidence that the process 5 being provided is constitutionally deficient. For this reason, in addition to those stated in the 6 R&R, to which Plaintiff has not raised objection, any Due Process Claim Plaintiff is attempting to 7 assert must be dismissed. 8 C. Eighth Amendment 9 Under the Eighth Amendment, prison officials have a duty to provide humane conditions 10 of confinement. Farmer v. Brennan, 511 U.S. 825, 832 (1994). There is both an objective and a 11 subjective component to an Eighth Amendment claim that prison officials have failed to prevent

12 harm: first, a plaintiff must show “[s]he is incarcerated under conditions posing a substantial risk 13 of serious harm.” Id. at 834. Second, a plaintiff must show that the officials acted with “deliberate 14 indifference” to inmate health or safety; “the official must both be aware of facts from which the 15 inference could be drawn that a substantial risk of serious harm exists, and he must also draw the 16 inference.” Id. at 832, 834; Helling v. McKinney, 509 U.S. 25, 33 (1993). The R&R recommends 17 dismissal of Plaintiff’s claims of Eighth Amendment violations based on treatment of her GD and 18 denial of her housing request, concluding that Plaintiff has failed to meet both the objective and 19 the subjective prongs of the test. The Court reviews each claim in turn. 20 1. Gender Dysphoria Treatment 21 The R&R accurately sets forth the law governing Eighth Amendment claims based on

22 claimed lack of medical care. See R&R at 24-26. In sum, “to maintain an Eighth Amendment 23

25 2 medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 3 429 U.S. 97, 104 (1976)). The two-pronged test for deliberate indifference requires the plaintiff to 4 show (1) “‘a serious medical need’ by demonstrating that ‘failure to treat a prisoner’s condition 5 could result in further significant injury or the unnecessary and wanton infliction of pain,’” and 6 (2) that “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096 7 (citation omitted).2 8 The R&R reviews the timeline of Plaintiff’s Gender Dysphoria treatment and 9 consultations related to her Gender Confirmation Surgery. R&R at 3-8. In recommending 10 dismissal of Plaintiff’s claim, the R&R credits Defendants’ “unrebutted evidence” that any delay 11 in the surgery—now scheduled for two and a half years after the Gender Dysphoria Care Review

12 Committee approved the procedure in March 2021—“is a result of the limited number of 13 practitioners in the field that accept prisoner patients, and a backlog caused by the suspension of 14 procedures during the COVID-19 pandemic.” R&R at 26-27; Clark Decl., ¶ 6; Rainer Decl., ¶ 7. 15 Furthermore, any claimed delays leading up to the approval in March 2021, as noted in the R&R, 16 was a product not of any deliberate indifference by Defendants, but a reflection of the challenges 17 and complexities of treating Gender Dysphoria, particularly in a prison setting, and a result of 18 recommendations by Plaintiff’s GD treatment team, which was concerned with the risks of 19 complications, and Plaintiff’s unrealistic expectations, associated with the surgery: 20 The report of the March 12, 2020 GD-CRC meeting continued to support the Committee’s previous finding of GD and support for hormone therapy—but the 21

2 The Ninth Circuit has acknowledged that “the medical consensus is that GCS is effective and medically necessary 22 in appropriate circumstances,” Edmo v. Corizon, Inc., 935 F.3d 757, 795 (9th Cir. 2019), and although the GD-CRC initially denied Plaintiff’s request for GCS, it appears that at this point there is no dispute that Plaintiff is entitled to 23 the procedure.

25 for GCS at that time. The report notes the consensus of plaintiff’s treatment team 2 that her lack of engagement in mental health treatment for her co-morbid conditions, and in health care treatment of her medical conditions, placed her at 3 high risk for complications with surgery. The Committee also noted unrealistic expectations for the surgery. The Committee concluded all of these factors “call 4 into question whether the patient is currently able to provide adequate informed consent regarding GCS or . . . able to adequately cope” with post-surgical 5 recovery and transition. These are important concerns in evaluating a patient for an irreversible procedure like GCS. 6 R&R at 28 (citing Clark Decl. Ex. c at 32–33; Rainer Decl., ¶ 5) (emphasis added). 7 In her Objections, Plaintiff has failed to provide any information or authority calling 8 Defendants’ evidence or the R&R’s recommendation into question, apart from Plaintiff’s 9 unsubstantiated belief that the process could have been quicker. There is simply no evidence that 10 any delays in treatment were a result of a deliberate indifference to Plaintiff’s serious medical 11 needs. The Court therefore adopts the R&R’s recommendation that Plaintiff’s Eighth Amendment 12 claims, related to the scheduling of her Gender Confirmation Surgery, be dismissed. 13 2. Housing Transfer Request 14 Finally, Plaintiff seeks transfer to WCCW, the Washington DOC’s only female facility, 15 or, in the alternative, to an out of state women’s facility, claiming that she is at risk of harm as 16 long as she is housed in a male facility. Plaintiff claims she “is continually being sexually abused 17 by inmates garbing her breast’s, bottom, ask for sexual favors, inmates trying to get Plaintiff to 18 enter there cell for sex.” Pl.’s Resp. to Mot. for Summ. Jdgmnt., at 4 (sic). Her movement within 19 the prison is limited, she claims, because “[t]here are no bathrooms for a woman in the recreation 20 areas or anywhere in the facility out side of Plaintiff’s cell.” Id. She also alleges that 21 accommodations made for her to shower at alternative times to allow for greater privacy have 22 been inadequate, and that she consequently has gone for months at a time without showering. 23

25 2 referenced above and detailed in the R&R.3 See R&R at 9 (citing Headley Decl.; Ex. A thereto); 3 supra, at 4. They assert they are continuing to pursue the possibility of placement at an out of 4 state women’s facility. Wofford Decl., ¶ 7. 5 The R&R concludes that Plaintiff’s allegations lack the requisite specificity to support her 6 Eighth Amendment claims, failing to support either of the two prongs articulated in Farmer. See 7 R&R at 21-23 (citing Williams v Wood, 223 F. App’x 670, 671 (9th Cir. 2007) (“Speculative and 8 generalized fears of harm at the hands of other prisoners do not rise to a sufficiently substantial 9 risk of serious harm to his future health.”)). The Court agrees. First, the few passing references 10 that Plaintiff makes to physical harm she has suffered are simply too vague and generalized to 11 support a conclusion she is at “serious risk of substantial harm.” For example, in her response to

12 Defendants’ Motion for Summary Judgment, Plaintiff refers to “Ms. Gordon being scared witless 13 and physically injured by evidence of bruises on Ms. Gordon’s arms.” Pl.’s Resp. at 17 (sic). She 14 provides no further information, however, regarding how or when she obtained those bruises, or 15 who gave them to her under what circumstances. Her claims of “continually being sexually 16 abused” are similarly lacking in any meaningful detail. In the absence of any detailed allegations 17 regarding when she has been assaulted, by whom, or under what circumstances, the Court concurs 18 with the R&R’s conclusion that Plaintiff has failed to demonstrate that she is at “serious risk of 19 20

21 3 Defendants submitted evidence that Rose Gordon has made a “keep separate” request, which claims Plaintiff would be a security and safety risk to her if Plaintiff were transferred to WCCW. See Ex. A to Headley Decl. Plaintiff claims that Rose Gordon’s statements supporting the keep separate request are untrue. However, the Court 22 need not credit the truth of Rose Gordon’s statements to defer to Defendants’ judgment that housing the two co- defendants in a single facility, given the nature of the crimes they committed together and Rose Gordon’s statements 23 (whether true or not), gives rise to serious security concerns.

25 2 568–69 (D. Ariz. 2020)). Similarly, although Plaintiff alleges she has been the subject of threats 3 and taunts, she provides no substantiating detail that would elevate these threats to the level of 4 “serious risk of substantial harm” contemplated by the Eighth Amendment. Blacher v. Johnson, 5 517 Fed. App’x. 564 (9th Cir. 2013) (Eighth Amendment’s protections did not extend to mere 6 verbal sexual harassment)). 7 Plaintiff has also failed to demonstrate the second prong of the Farmer test: that 8 Defendants have acted with deliberate indifference. As referenced above and in the R&R, 9 Defendants have provided substantial evidence of measures taken to protect Plaintiff from the 10 harm she fears, and continue to monitor her safety pursuant to PREA protocol. Wofford Decl., ¶ 11 3. They have provided her with a single cell, and made arrangements for separate showering

12 times. See R&R at 23-24. They pursued the possibility of Plaintiff’s placement at WCCW, and 13 concluded (presumably reasonably) that it is not an option; and they continue to seek transfer to 14 an out of state female facility. Wofford Decl., ¶ 7. These efforts are the antithesis of “deliberate 15 indifference.” 16 Plaintiff does not have a constitutional right to choose the facility in which she will be 17 incarcerated, and she does not, as a transgender female inmate, have a right to be housed in a 18 female facility. Richardson v. D.C., 322 F. Supp. 3d 175, 184–85 (D.D.C. 2018) (“Farmer does 19 not hold that transgender female inmates, notwithstanding their own housing preferences, may 20 never be celled with male inmates.”); see also Minor v. Dilks, 2022 WL 3369707, at *6 (D.N.J.

21 4 Plaintiff has submitted several affidavits of fellow inmates, who speak generally about harassment Plaintiff has endured, but these statements too all fail to include sufficient detail that would support a finding of a serious risk of 22 substantial harm. See Affs. of Jolicoeur Calvin E., ¶ 4 Dkt. No. 39-1 (“I have witnessed the plaintiff being verbally harassed many time[s] while she was just walking to her cell.”); Aaron Thomas, ¶ 7 (“I have personally witnessed 23 Ms. Gordon being harassed even spied on when she was trying to shower.”).

25 2 transfer Plaintiff to a female prison or housing with other transgender inmates . . .. What few 3 cases do exist on the issue of the appropriate prison placement of transgender inmates suggest that 4 no such clearly established right exists.”) (citations omitted); Bradley v. Price, 2021 WL 1895062 5 (W.D. Wis. May 11, 2021) (“I have found no case holding that single-cell confinement is required 6 for any transgender female inmate housed in a male prison.”). While Plaintiff does have a right to 7 be safe from serious harm by other prisoners, she has failed to allege facts demonstrating that she 8 is at “substantial risk” of such harm, or that Defendants have acted with “deliberate indifference.” 9 Consequently, her Eighth Amendment claims stemming from Defendants’ denial of her request 10 for transfer to a women’s facility must fail. 11 IV. CONCLUSION

12 For the foregoing reasons: 13 (1) The Court adopts the Report and Recommendation. 14 (2) Defendants’ Motion for Summary Judgment (Dkt. No. 33) is granted, and Plaintiff’s 15 claims are dismissed with prejudice. 16 (3) The Clerk is directed to send copies of this Order to Plaintiff, counsel for Defendants, 17 and to the Hon. David W. Christel. 18 DATED this 10th day of April, 2023. 19 A 20 B arbara Jacobs Rothstein U.S. District Court Judge 21 22 23