NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 6 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KAY LYNN DANA, FKA Larry Dana, No. 23-35047

Plaintiff-Appellant, D.C. No. 1:18-cv-00298-DCN

v.

MEMORANDUM*

IDAHO DEPARTMENT OF

CORRECTIONS; JOSH TEWALT; BREE

DERRICK; AL RAMIREZ, Warden;

RANDY VALLEY; JAY CHRISTENSEN;

DAVE DIETZ; TIM MCKAY; MORGAN

HAHN; WALTER CAMPBELL; RONA

SIEGERT; ELIZABETH ADKISSON;

EVANCHO, C.O.; LAURA WATSON;

KRINA STEWART; JANELL CLEMENT;

BRYAN GIMMESON; JEREMY CLARK;

JOSIE BOGGS; CHRIS BENNETT;

AMBER MICKELSON; TAYLOR, C.O.;

BREONNA KRAFFT; CORIZON, INC.;

ADREA NICODEMUS; SCOTT ELIASON,

M.D.; KAYLENE HARTT; STEVEN

MENARD, M.D.; IDA LE; NICK WISE;

GRANT ROBERTS; EMMA HARTT;

SAMUEL PIERSON,

Defendants-Appellees.

Appeal from the United States District Court for the District of Idaho David C. Nye, Chief District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Argued and Submitted May 10, 2024 Seattle, Washington

Before: MURGUIA, Chief Judge, and W. FLETCHER and OWENS, Circuit Judges.

Plaintiff Kay Lynn Dana (“Dana”) appeals the district court’s dismissal of

her 42 U.S.C. § 1983 suit alleging that the defendants failed to treat her gender

dysphoria (“GD”) during her incarceration at an Idaho state prison. The district

court dismissed Dana’s suit with prejudice under Federal Rule of Civil Procedure

12(b)(6) because, although Dana was twice permitted to amend her complaint, she

continued to use impermissible “group pleading,” categorizing the thirty-six

individual defendants into broad groups and failing to plausibly allege how any

particular defendant’s behavior was unlawful. We review de novo the district

court’s decision on a motion to dismiss. Starr v. Baca, 652 F.3d 1202, 1205 (9th

Cir. 2011). We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part

and reverse and remand in part.

1. We affirm the district court’s dismissal of all claims against all

defendants based on the complaint’s “absence of sufficient facts alleged under a

cognizable legal theory.” Johnson v. Riverside Healthcare Sys., LP, 534 F.3d

1116, 1121-22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep’t, 901

F.2d 696, 699 (9th Cir. 1990)). A complaint “does not require ‘detailed factual

allegations,’” but it must plead enough “factual content that allows the court to

2 draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007)).

Dana’s first and third claims, alleging primarily Eighth Amendment

deliberate indifference based on the long delay in her receiving a GD diagnosis,

fail because Dana does not plausibly allege that any defendant acted with

subjective indifference. A plaintiff alleging inadequate medical care can establish

deliberate indifference by showing the course of treatment the defendant chose was

both “medically unacceptable under the circumstances” and was chosen “in

conscious disregard of an excessive risk to the plaintiff’s health.” Edmo v.

Corizon, Inc., 935 F.3d 757, 786 (9th Cir. 2019) (per curiam) (quoting Hamby v.

Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016)). Dana does not plausibly allege

that—of the twenty-one defendants named in claim one and three who remain on

appeal—any defendant knew of the severity of her circumstances and consciously

disregarded that known excessive risk to her health. Several defendants, such as

psych tech Kaylene Hartt, allegedly attended a single treatment meeting. Other

defendants, such as clinician Josie Boggs, were allegedly unqualified to assess

gender dysphoria. Dana does not plausibly allege sufficient facts to infer that any

of the defendants consciously disregarded an excessive risk to her health.

Dana’s second claim, alleging Eighth Amendment excessive force against

3 custodial staff, fails for similar reasons. An excessive force claim requires alleging

that the defendant had a “sufficiently culpable state of mind,” which turns on

whether force was applied in good faith or “maliciously and sadistically for the

very purpose of causing harm.” Bearchild v. Cobban, 947 F.3d 1130, 1140 (9th

Cir. 2020) (quoting Hudson v. McMillian, 503 U.S. 1, 6, 8 (1992)). Dana’s

allegation that the custodial defendants acted with “malicious and sadistic force” is

a “formulaic recitation of the elements,” Twombly, 550 U.S. at 555, without the

necessary plausible supporting facts.

Dana’s fourth and fifth claims, alleging Fourteenth Amendment equal

protection violations, fail because Dana does not plausibly allege that any

defendant purposefully discriminated against her. To state an equal protection

claim, a plaintiff must allege that the defendant “acted with an intent or purpose to

discriminate against the plaintiff based upon membership in a protected class.”

Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (quoting Barren v.

Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). But Dana does not plausibly

allege facts indicating that the defendants who attended one or more treatment

meetings were purposefully discriminating against her on the bases she identifies.

And for the defendants who were allegedly more involved in the delay in

diagnosing Dana with GD or for the custodial defendants, Dana does not allege

4 how their actions evinced an intent to discriminate against her on the specified

bases.

We therefore affirm the district court’s dismissal of all claims against all

defendants.

2. We affirm the district court’s denial of leave to amend with respect to all

claims and defendants, except as to claim one against Dr. Walter Campbell. At

oral argument, the defendants conceded that when it came to diagnosing Dana with

GD, Dr. Campbell was the “final decision-maker.” This concession about his

exclusive decision-making authority, combined with Dana’s other allegations

about Dr. Campbell’s knowledge, actions, and inactions between October 2018 and

October 2019, might be sufficient to plausibly allege an Eighth Amendment claim

for failure to provide medical treatment.

We acknowledge that Dana has had multiple opportunities to cure the

deficiencies in her complaint, and that each time she has exacerbated those

deficiencies. At the same time, in light of the defendants’ significant concession

regarding Dr. Campbell’s authority and our case law’s preference for decisions “on

the merits, rather than on the pleadings or technicalities,” Lopez v. Smith, 203 F.3d

1122, 1127 (9th Cir. 2000) (en banc) (quoting Noll v. Carlson, 809 F.2d 1446,

1448 (9th Cir. 1987)), we remand to allow one final opportunity for amendment.

We reverse the district court’s denial of leave to amend solely with respect to claim

5 one against Dr. Walter Campbell. In amending, Dana should be mindful that a

complaint “must contain sufficient allegations of underlying facts to give fair

notice and to enable the opposing party to defend itself effectively.” Starr, 652

F.3d at 1216.

Each party shall pay its own costs on appeal.

AFFRIMED IN PART AND REVERSED AND REMANDED IN

PART.

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