                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alexis Welter,                                   :
                       Petitioner                :
                                                 :   No. 302 M.D. 2019
               v.                                :
                                                 :   Submitted: January 24, 2020
Correct Care Solutions, SCI Fayette,             :
Department of Corrections, Capozza,              :
Stephanie Wood, Joseph Silva,                    :
                   Respondents                   :



OPINION NOT REPORTED

MEMORANDUM OPINION
PER CURIAM                                                           FILED: August 25, 2020


               Before the Court in our original jurisdiction are the preliminary
objections filed by Correct Care Solutions, the State Correctional Institution at
Fayette (SCI-Fayette), the Department of Corrections (Department), and Mark
Capozza, Stephanie Wood, and Joseph Silva (collectively, Respondents) to the
petition for review (Petition) filed by Alexis Welter (Welter).1                     We grant the
preliminary objections and dismiss the Petition.

       1
          Welter originally filed a complaint in the Court of Common Pleas of Fayette County (trial
court), which transferred the matter to this Court by order dated May 1, 2019. In their preliminary
objections, Respondents assert that this Court lacks jurisdiction over the matter and that jurisdiction
properly lies in the trial court. Assuming Respondents are correct, we nonetheless decline to
transfer the case back to the trial court. We do so based on principles of judicial economy and our
conclusions, discussed more fully infra, that regardless of which tribunal entertained her case,
Welter has failed to plead a cognizable cause of action as a matter of law and the legal deficiencies
of the Petition are incurable, even if this Court sua sponte granted her leave to amend. See Balshy
v. Rank, 490 A.2d 415, 416 (Pa. 1985); Richardson v. Pennsylvania Department of Corrections, 991
A.2d 394, 397-98 (Pa. Cmwlth. 2010); see also Wilson v. Marrow, 917 A.2d 357, 365 (Pa. Cmwlth.
(Footnote continued on next page…)
                On May 29, 2019, Welter, an inmate at SCI-Fayette, filed the Petition
alleging that Respondents have displayed deliberate indifference to Welter’s medical
needs in violation of the Eighth Amendment to the United States Constitution.2
                According to the Petition, Welter claims to be a transgender female
currently housed in a male prison who has presented herself as a female since the date
of incarceration on August 28, 2018.3 Welter alleges that she suffers from gender
dysphoria (GD) and that Respondents have provided her with inadequate medical
treatment, causing her to develop a drug addiction and depression.
                The Department has issued Policy Statement 13.2.1, effective May 7,
2019, titled “Access to Health Care Procedures Manual” (Manual), and section 19 of
the Manual specifically deals with “Diagnosis and Treatment of [GD].” (Manual,
13.2.1, §19.)4       By its terms, section 19 explicitly acknowledges that GD is “a
condition formally recognized and described by the American Psychiatric
Association in the current version of the Diagnostic and Statistical Manual of Mental
Disorders, 5th edition, (DSM-5),” Manual, 13.2.1, §19.B.1. Section 19 further states
that “[t]he latest version of Standards of Care for the Health of Transsexual,


(continued…)

2007); Feldman v. Lafayette Green Condominium Association, 806 A.2d 497, 500 (Pa. Cmwlth.
2002).

       2
           U.S. Const. amend. VIII.

       3
          Consistent with the factual averments in the Petition, we will use female pronouns when
referring to Welter.

       4
       The Manual is available at:
      https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/13.02.01%20Access%2
0to%20Health%20Care.pdf (last visited August 24, 2020).



                                               2
Transgender, and Gender-Nonconforming People, published by the World
Professional Association for Transgender Health (WPATH), will serve as guidelines
for the overall health care of identified inmates.” Manual, 13.2.1, §19.D.1.
             Pursuant to section 19, the Department has created a psychiatric division
for “the mental health diagnosis and treatment of inmates diagnosed with GD,” a
clinical division “for the medical treatment of inmates diagnosed with GD,” and a
“GD Treatment Review Committee” (Committee). Id. at §19.A. As constructed, the
Committee consists of various medical and psychological professionals and other
experts who practice in the field of treating those with GD. Id. As part of its duties
under the Manual, the Committee reviews and approves an Individual Recovery Plan
(IRP) for individuals suffering from GD.           If an inmate disagrees with the
Committee’s disapproval of a particular treatment plan or procedure, the inmate may
file a grievance in accordance with the Department’s policy.
             As averred in the Petition, on August 17, 2018, Respondents began
treating Welter with hormone replacement therapy. On September 20, 2018, Welter
formally requested permanent facial hair removal. According to Welter, she

             requested access to permanent facial hair removal for
             multiple reasons that make it an essential part of treating her
             GD. Welter presents herself as a female in mannerisms,
             verbal [and] non-verbal communication, hair style, [choice]
             of clothing, use of eye make-up, and physical[,] secondary
             sexual characteristics brought about from hormone
             replacement therapy. In light of the foregoing, it is plain to
             see why the presence of facial hair is a major medical issue
             concerning Welter’s GD.
(Petition, ¶11.) Welter asserts that she “is suffering direct injury from the deliberate
indifference shown to her request for permanent facial hair removal in the form of
serious damage to her mental health.” Id. ¶12. Welter claims that “[t]he failure to



                                           3
address her facial hair [issue] has caused depression, anxiety, apathy, insomnia, lack
of appetite, [and] aggravation of her sensation of dysphoria.” Id.
               Based on the allegations in the Petition and grievance documents
attached thereto, Welter receives hormone replacement therapy in the form of a
medication named Estradiol. This medicine is an estrogen steroid hormone that
assists males in “transitioning” to the female gender.              Welters also takes other
medications and routinely consults with a psychiatrist and the Corrections
Classification and Program Manager, who is a member of the Committee. After
Welter’s request for permanent facial hair removal was denied, she filed a grievance
contesting the decision. The medical professionals processing and deciding Welter’s
grievance reviewed her medical records and determined that, without permanent
facial hair removal, she is still “receiving appropriate medical care” and that her
“medical needs are being met.” Id. at Ex. A. As such, Respondents denied Welter’s
grievance.
                 In her Petition, Welter asserts a claim for deliberate indifference under
the Eighth Amendment to the United States Constitution and a medical negligence
claim based on a theory of res ipsa loquitur.              Along with the Petition, Welter
included a certificate of merit5 stating that expert testimony is unnecessary for
prosecution of her claims because Respondents’ conduct “is so obviously negligent
and inadequate.” (Petition, ¶86.) For relief, she requests an affirmative injunction
requiring Respondents to provide her with a proper evaluation and permanent facial
hair removal as well as monetary damages.6



      5
          See Pennsylvania Rules of Civil Procedure (Pa.R.C.P.) Nos. 1042.1-1042.12.

(Footnote continued on next page…)

                                                4
               In turn, Respondents filed preliminary objections in early August 2019
and briefs in support of their positions. Respondents, inter alia, asserted preliminary
objections in the nature of a demurrer, contending that the Petition did not state a
valid cause of action. Welter did not file a brief in opposition. The matter is now
ripe for disposition.
               Initially, we note that in ruling on preliminary objections in the nature of
a demurrer, the Court must accept as true all well-pleaded material facts and all
inferences reasonably deducible therefrom. Barndt v. Pennsylvania Department of
Corrections, 902 A.2d 589, 592 (Pa. Cmwlth. 2006). However, the Court is not
required to accept as true legal conclusions, unwarranted factual inferences,
argumentative allegations, or expressions of opinion. Armstrong County Memorial
Hospital v. Department of Public Welfare, 67 A.3d 160, 170 (Pa. Cmwlth. 2013) (en
banc).
               The Eighth Amendment prohibits “cruel and unusual punishment.” U.S.
Const. amend. VIII. In Estelle v. Gamble, 429 U.S. 97 (1976), the United States
Supreme Court found that “deliberate indifference to serious medical needs of
prisoners constitutes the ‘unnecessary and wanton infliction of pain.’” Id. at 104
(quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). This is true whether the
indifference is by “prison doctors in their response to the prisoner’s needs or by
prison guards in intentionally denying or delaying access to medical care or




(continued…)
         6
       On June 11, 2019, Welter filed a praecipe for default judgment. See Pa.R.C.P. Nos. 237.1,
1037. On July 11, 2019, this Court declined to file the praecipe and, instead, filed an order directing
Respondents to file an answer or otherwise plead within 30 days.



                                                  5
intentionally interfering with the treatment once prescribed.” Estelle, 429 U.S. at
104-05.
              In order to state a viable Eighth Amendment claim, an inmate/petitioner
must allege facts or omissions by a respondent sufficiently harmful to show deliberate
indifference to a serious medical need. Id. at 106. A respondent exhibits deliberate
indifference if the respondent (i) knows of and disregards an excessive risk to the
inmate’s health or safety; (ii) was aware of facts from which an inference could be
drawn that a substantial risk of serious harm exists; and (iii) draws the inference.
Tindell v. Department of Corrections, 87 A.3d 1029, 1039 (Pa. Cmwlth. 2014). With
respect to the second prong of the standard, a “serious medical need” exists if a
respondent’s act or omission results in “the denial of ‘the minimal civilized measure
of life’s necessities.’” Farmer v. Brennan, 511 U.S. 825, 834 (1970) (quoting Rhodes
v. Chapman, 452 U.S. 337, 347 (1981)).
              Broadly speaking, federal courts have recognized GD treatment as a
serious medical need and have held that conduct which rises to the level of deliberate
indifference to that medical need can, in appropriate cases, result in a cognizable
constitutional tort claim under the Eighth Amendment and Section 1983.7 See, e.g.,

       7
         Section 1983 of the Civil Rights Act of 1964, 42 U.S.C. §1983. Section 1983 provides in
pertinent part:

              Every person who, under color of any statute, ordinance, regulation,
              custom, or usage, of any State or Territory or the District of
              Columbia, subjects, or causes to be subjected, any citizen of the
              United States or other person within the jurisdiction thereof to the
              deprivation of any rights, privileges, or immunities secured by the
              Constitution and laws, shall be liable to the party injured in an action
              at law, suit in equity, or other proper proceeding for redress . . . .

42 U.S.C. §1983.



                                                 6
Hood v. Department of Children and Families, 700 F. App’x 988, 990 (11th Cir.
2017) (unreported); Rosati v. Igbinoso, 791 F.3d 1037, 1040 (9th Cir. 2015); Fields v.
Smith, 653 F.3d 550, 555 (7th Cir. 2011); Brown v. Zavaras, 63 F.3d 967, 969 (10th
Cir. 1995). Nonetheless, recent decisions from the United States Courts of Appeals
for the First, Fifth, Seventh and Tenth Circuits have established that, in general, it is
extremely difficult for an inmate to make out an Eighth Amendment claim when the
inmate is receiving some type of medically acceptable treatment for GD. Campbell v.
Kallas, 936 F.3d 536, 547-49 (7th Cir. 2019); Gibson v. Collier, 920 F.3d 212, 216-
28 (5th Cir. 2019); Lamb v. Norwood, 899 F.3d 1159, 161-63 (10th Cir. 2018);
Kosilek v. Spencer, 774 F.3d 63, 76-78, 87-89, 96 (1st Cir. 2014) (en banc).
             As a basic precept, these cases have recognized, as a starting point, that
“[w]hen prison officials utterly fail to provide care for a serious medical condition,
the constitutional violation is obvious.” Campbell, 936 F.3d at 548. However, “the
Constitution is not a medical code that mandates specific medical treatment.” Snipes
v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996). As such,

             prisons aren’t obligated to provide every requested
             treatment once medical care begins. In a deliberate []
             indifference case challenging the medical judgment of
             prison healthcare professionals who actually diagnose and
             treat an inmate’s medical condition (as opposed to ignoring
             it), we necessarily evaluate those discrete treatment
             decisions. And we defer to those decisions unless no
             minimally competent professional would have made them.

Campbell, 936 F.3d at 548 (internal quotation marks and citations omitted).
             Stated somewhat differently, “[t]here is no Eighth Amendment claim
just because an inmate believes that medical personnel should have attempted
different diagnostic measures or alternative methods of treatment.” Gibson, 920 F.3d



                                           7
at 220. Rather, “[t]he law is clear that where two alternative courses of medical
treatment exist, and both alleviate negative effects within the boundaries of modern
medicine, it is not the place of our court to second guess medical judgments or to
require that [a department of corrections] adopt the more compassionate of two
adequate options.” Kosilek, 774 F.3d at 90.
             Relying on these principles, the court in Kosilek, sitting en banc,
concluded that the state actors did not engage in deliberate indifference to the
petitioners’ medical needs where the petitioners, suffering from GD and severe
depression and anxiety, asserted that they were in need of sex reassignment surgery
(SRS). However, the petitioners in that case received other forms of medically
acceptable treatment. In addressing an Eighth Amendment claim in this factual
context, the Kosilek court stated:

             The question before our court . . . is not whether
             antidepressants and psychotherapy alone are sufficient to
             treat [GD], or whether [GD] constitutes a serious medical
             need. Rather, the question is whether the decision not to
             provide SRS—in light of the continued provision of all
             ameliorative measures currently afforded [the petitioners] is
             sufficiently harmful to [petitioners] so as to violate the
             Eighth Amendment. It is not.

                                      *      *   *

             That the [department of corrections] has chosen one of two
             alternatives—both of which are reasonably commensurate
             with the medical standards of prudent professionals[]—is a
             decision that does not violate the Eighth Amendment.
Id. at 89-90 (internal citations omitted).
             After the First Circuit rendered its decision in Kosilek, the Fifth and
Tenth Circuits issued their decisions in Gibson and Lamb, respectively. In both




                                             8
cases, the courts held, in essence, that there is no constitutional right to GD treatment
beyond hormone therapy and psychological counseling sessions.
             The Gibson court, citing Kosilek, initially pointed out that “respected
medical experts fiercely question whether [SRS], rather than counseling and hormone
therapy, is the best treatment for [GD].” 920 F.3d at 216. The court noted that the
correctional facility “provided [the petitioner] with counseling and hormone therapy”
and stated that the petitioner acknowledged “the on-going good faith medical debate
over the necessity and efficacy of [SRS].” Id. at 224. From these facts, the Gibson
court reiterated that “mere disagreement with one’s medical treatment is insufficient
to state a claim under the Eighth Amendment” and concluded that “[t]his bedrock
principle” necessarily “doom[ed]” the petitioner’s case. Id. at 216 (internal quotation
marks and citations omitted).
             Similarly, the Lamb court echoed that, although the petitioner in that
case disagreed with her course of medical treatment, “the disagreement alone cannot
create a reasonable inference of deliberate indifference.” 899 F.3d at 1163. There,
the court noted that the petitioner was “receiving hormone treatment, testosterone-
blocking medication, and weekly counseling sessions” and, relying on prior circuit
precedent, determined “that these forms of treatment [] preclude liability for an
Eighth Amendment violation.”        Id. at 1161.     In so holding, the Lamb court
emphasized that it has “consistently held that prison officials do not act with
deliberate indifference when they provide medical treatment even if it is subpar or
different from what the inmate wants.” Id. at 1162. In the end, the court concluded
that there is no Eighth Amendment violation where “the state’s department of




                                           9
corrections had made an informed judgment about treatment options in the face of
disagreement within the medical community.” Id.8
                In Campbell, the court addressed the issue of whether prison officials
were entitled to qualified immunity for a prisoner’s deliberate indifference claim
brought through the vehicle of Section 1983.9 In concluding that the prison officials
were protected by qualified immunity, the court stated in relevant part:

                In short, when the [prison officials] denied [the prisoner’s]
                request for [SRS], no case clearly establihed a right to [GD]
                treatment beyond hormone therapy. As for [the prisoner’s]
                requests for electrolysis[, i.e., permanent facial hair
                removal,] and makeup, our cases offer no indication that
                denying arguably nonmedical cosmetic accommodations
                violates the Eighth Amendment.
936 F.3d at 549.
                Here, Welter has not alleged that Respondents had a blanket policy
against utilizing permanent facial hair removal as a form of treatment for GD or that
her medical and health providers did not consider the possibility of such treatment as
part of her IRP and overall treatment plan. Welter admits that Respondents, in
addressing the issues and symptoms associated with her GD, provided her with
hormone replacement therapy and psychiatric care. Upon review of Welter’s medical
records, the medical professionals determined that she was and is receiving
appropriate medical care, absent permanent facial hair removal. Notably, apart from
bald allegations, Welter has failed to plead facts sufficient to establish that her

       8
           But see Edmo v. Corizon, Inc., 935 F.3d 757 (9th Cir. 2019).

       9
           As the court explained, “[q]ualified immunity protects government officials from damages
liability insofar as their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Campbell, 936 F.3d at 545 (internal citations
and quotation marks omitted).



                                                   10
medical and mental health providers were not competent to treat her GD.         On the
facts as averred, Welter’s assertions that her current treatment plan or IRP is
inadequate is merely a disagreement with the opinions of her medical providers.
             With respect to Welter’s alleged increase in mental distress, she has not
averred that her current psychiatric/psychological regime has been completely
ineffectual or that she has pursued additional treatment and/or an adjustment to her
medications to further address her mental health. Consequently, Welter does not
plausibly allege that Respondents knew that she faced a substantial risk of serious
bodily harm and acted in plain and intentional disregard of that risk in denying her
request for permanent facial hair removal.      Because the material allegations in the
Petition do not rise to the level of a constitutional violation, the Court dismisses
Welter’s deliberate indifference claim against Respondents as legally insufficient.
             Moreover, with respect to the doctrine of res ipsa loquitur in medical
negligence cases, our Superior Court has explained:

             Medical malpractice consists of a negligent or unskillful
             performance by a physician of the duties which are
             devolved and incumbent upon him on account of his
             relations with his patients, or of a want of proper care and
             skill in the performance of a professional act . . . . With all
             but the most self-evident medical malpractice actions there
             is the [] requirement that the plaintiff must provide a
             medical expert who will testify as to the elements of duty,
             breach, and causation.

             A narrow exception to the requirement that medical
             malpractice claims be supported by expert testimony
             applies in instances of obvious negligence, i.e.,
             circumstances in which the medical and factual issues
             presented are such that a lay juror could recognize
             negligence just as well as any expert. In such instances, the
             doctrine of res ipsa loquitur allows a fact-finder to infer



                                           11
             from the circumstances surrounding the injury that the harm
             suffered was caused by the negligence of the defendant.
Fessenden v. Robert Packer Hospital, 97 A.3d 1225, 1229-30 (Pa. Super. 2014)
(internal citations omitted).   Put simply, the res ipsa loquitur “exception to the
requirement of expert testimony in medical malpractice actions applies where the
matter is so simple or the lack of skill or care is so obvious as to be within the range
of experience and comprehension of even non-professional persons.” Hightower-
Warren v. Silk, 698 A.2d 52, 54 n.1 (Pa. 1997).
             Here, the issue of whether Welter’s medical and health providers
breached the professional standard of care in deciding not to provide Welter
permanent facial hair removal is one that clearly requires expert testimony. This
issue is not one where blatant negligence is patent and within the realm of layperson
knowledge, such as, for example, when a surgeon inadvertently leaves a sponge or
other medical material/instrument in a patient’s abdominal cavity.        See Jones v.
Harrisburg Polyclinic Hospital, 437 A.2d 1134, 1138 n.11 (Pa. 1981). Contrary to
Welter’s assertion, expert testimony is an indispensable requisite to establish her
claim. Therefore, the Court dismisses Welter’s negligence claim based on a theory of
res ipsa loquitur.
             Accordingly, having concluded that Welter has failed to state a claim
upon which relief can be granted, the Court sustains Respondents’ preliminary
objections and dismisses the Petition.




                                          12
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alexis Welter,                           :
                    Petitioner           :
                                         :   No. 302 M.D. 2019
             v.                          :
                                         :
Correct Care Solutions, SCI Fayette,     :
Department of Corrections, Capozza,      :
Stephanie Wood, Joseph Silva,            :
                   Respondents           :


PER CURIAM

                                       ORDER


             AND NOW, this 25th day of August, 2020, the preliminary objections
filed by Correct Care Solutions, the State Correctional Institution at Fayette, the
Department of Corrections, and Mark Capozza, Stephanie Wood, and Joseph Silva
to the petition for review (Petition) filed by Alexis Welter are hereby sustained and
the Petition is dismissed.
