3:22-cv-00191-MOC-DCK) KANAUTICA ZAYRE-BROWN v. North Carolina Department of Adult Corrections

FILED: July 25, 2024
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
___________________
No. 24-6477
(3:22-cv-00191-MOC-DCK)
___________________
KANAUTICA ZAYRE-BROWN
Plaintiff - Appellee
v.
NORTH CAROLINA DEPARTMENT OF ADULT CORRECTIONS; TODD E.
ISHEE, in his official capacity as Secretary of the North Carolina Department of
Adult Correction; GARY JUNKER, in his official capacity as Deputy Secretary of
the North Carolina Department of Adult Correction; ARTHUR CAMPBELL, in
his official capacity as Medical Director III, the North Carolina Department of
Adult Correction; BRANDESHAWN HARRIS, in her official capacity as Chief
Deputy Secretary, the North Carolina Department of Adult Correction; TERRI
CATLETT, in her official capacity as Director of Healthcare Administration,
Division of Prisons, the North Carolina Department of Public Safety;
JONATHAN PEIPER, in his official capacity as Human Services Director the
North Carolina Department of Adult Correction; BRIAN SHEITMAN, Medical
Director III, the North Carolina Department of Adult Correction; VALERIE
LANGLEY, in her official capacity as Nurse Director the North Carolina
Department of Adult Correction; ABHAY AGARWAL, Medical Director II, the
North Carolina Department of Adult Correction; SARAH COBB, in her official
capacity as Director of Rehabilitative Services, Division of Prisons, the North
Carolina Department of Adult Correction; JOSH PANTER, in his official capacity
as Correctional Administrator the North Carolina Department of Adult Correction;
CHARLOTTE WILLIAMS, in her official capacity as a Program Manager, the
North Carolina Department of Adult Correction; ELTON AMOS, in his official

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capacity as Medical Director II, the North Carolina Department of Adult
Correction
Defendants - Appellants
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O R D E R
___________________
Upon consideration of the submissions relative to appellants’ motion to stay
the proceeding in the district court and for a temporary administrative stay, the court
denies the motion to stay the proceeding.
Judge Gregory and Judge Thacker voted to deny the motion. Judge Rushing
voted to grant the motion.
For the Court
/s/ Nwamaka Anowi, Clerk

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RUSHING, Circuit Judge, dissenting:
The North Carolina Department of Adult Correction denied a transgender inmate’s
request for sex-change surgery—here, a vulvoplasty 1 —after the Department’s Transgender
Accommodation Review Committee determined that surgery was not medically necessary.
The inmate sued the Department, alleging that it had violated the Eighth Amendment’s ban
on cruel and unusual punishment by denying the inmate “medically necessary” care. Dist.
Ct. Dkt. ECF 1, at 2, 38 (Complaint). Without making any finding about the likely medical
necessity of this surgery, the district court—disturbed by one of the committee doctor’s
views on the medical efficacy of transgender surgery—imposed a mandatory preliminary
injunction on the Department. Zayre-Brown v. N.C. Dep’t of Pub. Safety (Zayre-Brown
II), No. 3:22-CV-191-MOC-DCK, 2024 WL 1641795, at *3–4 (W.D.N.C. Apr. 16, 2024).
That injunction requires the Department—by this Friday, July 26—either (1) to
agree to perform the vulvoplasty the committee determined was medically unnecessary, or
(2) to form a new committee of “gender dysphoria expert[s],” who must be approved by
the district court for correct views on this medical issue and who will reevaluate the
inmate’s request. Id. at *4. The Department is appealing the preliminary injunction to our
Court, arguing it should never have been imposed. In the interim, the Department asked
our Court to stay the injunction pending appeal. That way, the Department is not forced to
perform a medically unnecessary surgery (thereby mooting the Eighth Amendment claim)
1 A “vulvoplasty,” in the words of the inmate’s expert witness, entails the “removal
of the phallus and the creation of typical, female-appearing [outer] genitals” in its place.
Dist. Ct. Dkt. ECF 101, at 112.

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or to create a taxpayer-funded committee of gender-dysphoria experts selected by the
district court who will redo the prison committee’s work and reach a new conclusion—all
before this Court has a chance to decide the lawfulness of the injunctive order in the first
place.
But today, a panel of this Court denies a stay, so that by the time our Court resolves
the Department’s appeal, our decision won’t matter. Indeed, the panel denies even a
temporary administrative stay, which would have given this Court some time to consider
whether to grant the stay pending appeal. The panel’s decision cannot be reconciled with
the governing legal standard.
First—most importantly and most obviously—the Department is “likely to succeed
on the merits” of its appeal challenging this mandatory preliminary injunction. Ohio v.
EPA, 144 S. Ct. 2040, 2052 (2024). The district court’s errors leap off the page. To begin,
the court made no finding that the inmate’s requested surgery was medically necessary and
yet concluded the Department violated the Eighth Amendment by denying it. Even the
out-of-circuit case the district court relied upon makes this error clear: “To show deliberate
indifference, the plaintiff must show that the course of treatment the official chose was
medically unacceptable under the circumstances”—i.e., that the official denied “medically
necessary” treatment—“and that the official chose this course in conscious disregard of an
excessive risk to the plaintiff’s health.” Edmo v. Corizon, Inc., 935 F.3d 757, 786–792 (9th
Cir. 2019) (per curiam) (internal quotation marks and brackets omitted); see also Bowring
v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977) (“[T]he essential test is one of medical
necessity.”). The district court expressly made “no finding as to medical necessity”

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because “a reasonable jury could find for either party on the question of medical necessity.”
Zayre-Brown II, 2024 WL 1641795, at *4. When pressed, the district court doubled down,
stating that “Defendants are correct that [the] Court eschewed the question of medical
necessity.” Zayre-Brown v. N.C. Dep’t of Adult Corr. (Zayre-Brown III), No. 3:22-CV-
191-MOC-DCK, 2024 WL 3404620, at *3 (W.D.N.C. July 12, 2024). Without finding a
likelihood of success on the medical necessity question, the district court could not find
“actual success on the merits” of the inmate’s deliberate indifference claim, as the court
purported to do. Zayre-Brown II, 2024 WL 1641795, at *3.
Nor did the district court find, as our deliberate indifference precedent requires, that
committee members likely had “actual subjective knowledge of both the inmate’s serious
medical condition and the excessive risk posed by [their] action or inaction,” Jackson v.
Lightsey, 775 F.3d 170, 178 (4th Cir. 2014) (emphasis added), such that their decision was
“so grossly incompetent, inadequate, or excessive as to shock the conscience,” Hixson v.
Moran, 1 F.4th 297, 303 (4th Cir. 2021) (internal quotation marks omitted). Rather, the
uncontradicted testimony in the record reflects that, after much evaluation, the committee
determined that the inmate was benefiting from the current treatment (of hormone therapy,
psychological counseling, and women’s housing and personal items) and a vulvoplasty was
not medically necessary to treat the inmate’s current condition. The inmate’s expert
disagreed, but “a disagreement among reasonable medical professionals is not sufficient to

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sustain a deliberate indifference claim,” which requires subjective knowledge and disregard
of an excessive risk to the inmate’s health or safety. 2 Hixson, 1 F.4th at 303.
Instead of following these legal requirements, the district court claimed the
Department violated the Eighth Amendment in its “process, not substance.” Zayre-Brown
II, 2024 WL 1641795, at *3. Without any determination that the Department denied the
inmate adequate medical care, the district court apparently concluded that the Department’s
decisionmaking process itself was cruel and unusual punishment. See id. at *4 (“The Court
finds only that the process by which Defendants assessed medical necessity was
flawed. . . . Defendants’ accommodation review process violated Plaintiff’s Eighth
Amendment rights.”). That is, to say the least, difficult to square with the Constitution.
2 The district court relied on the World Professional Association for Transgender
Health (WPATH) Standards. Zayre-Brown v. N.C. Dep’t of Pub. Safety (Zayre-Brown I),
No. 3:22-CV-191-MOC-DCK, 2024 WL 410243, at *5 (W.D.N.C. Feb. 2, 2024). This
Court has declined to “offer an opinion one way or the other” regarding the “the necessity
of sex reassignment surgery” in connection with the “WPATH Standards of Care” for
“Eighth Amendment deliberate-indifference” claims, noting that other circuits have
rejected such medical necessity arguments. Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d
586, 595 n.2 (4th Cir.), as amended (Aug. 28, 2020); cf. De’lonta v. Johnson, 708 F.3d
520, 522–523, 526 (4th Cir. 2013). In any event, the WPATH Standards appear to be a red
herring because they do not define medical necessity in this context. The prison clinicians
explained that the WPATH Standards are “absolutely used” in their surgical intervention
evaluation process, but that WPATH does not provide an “operational definition for
medical necessity that we, at the primary-care level as providers, can utilize.” Dist. Ct.
Dkt. ECF 101, at 61–62. The inmate’s expert witness, “one of the authors” of the WPATH
Standards, testified to the same, explaining that “[m]eeting [the eligibility] criteria does not
mean that surgery is medically necessary” and that the medical necessity determination
must be “undertaken by a qualified mental-health professional” on a “case-by-case basis.”
Dist. Ct. Dkt. ECF 101, at 103, 106–107, 111. So even if one accepted the district court’s
highly suspect decision to incorporate the WPATH Standards into the Eighth Amendment
as the constitutional minima, see Zayre-Brown I, 2024 WL 410243, at *5–6, that would
make no difference. The WPATH Standards require “case-by-case” evaluations by mental
health professionals.

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See Wilson v. Seiter, 501 U.S. 294, 297 (1991) (“[O]nly the unnecessary and wanton
infliction of pain implicates the Eighth Amendment.” (internal quotation marks and
emphasis omitted)). And it is based on a clearly erroneous assessment of the record. The
district court asserted that, despite its policies to the contrary, the Department has a de facto
ban on transgender surgeries. But the uncontradicted evidence amply demonstrates that
the inmate here received an individualized evaluation. 3 For all these reasons, the
Department is likely to succeed on the merits of its appeal challenging the mandatory
injunction.
Second, the Department will “suffer irreparable injury without a stay” and the
“public interest lies” in granting one. Ohio, 144 S. Ct. at 2052; see Nken v. Holder, 556
3 See Dist. Ct. Dkt. ECF 61, Ex. 27 (committee report detailing consideration of
inmate’s specific circumstances, even examining “recent progress notes from supportive
counseling and therapy sessions”); Dist. Ct. Dkt. ECF 101, at 11–14, 22, 45–50, 55–60,
76–80, 83–84, 88–90 (uncontradicted testimony of three clinicians on the committee that
the Department’s individualized consideration policy is de jure and de facto and that they
each conducted independent individualized reviews of the inmate’s mental health); see also
Zayre-Brown I, 2024 WL 410243, at *2 (describing how the committee consulted with the
UNC Transgender Health Program and referred the inmate for evaluations by medical
professionals in that program).
At bottom, the district court’s analysis turned on the views of one committee
member, who had expressed skepticism in a draft policy document about the medical
necessity of sex-change surgery. Zayre-Brown II, 2024 WL 1641795, at *3. The district
court was upset that the doctor’s “personal views” on this medical subject might have
affected the process and so ordered the process redone with right-thinking doctors. Id. But
the Eighth Amendment prohibits deliberate indifference, not differing medical opinions
about the efficacy of surgery. See Hixson, 1 F.4th at 303. The committee could have been
biased, negligent, and even guilty of malpractice without violating the Eighth Amendment.
See Jackson, 775 F.3d at 178 (4th Cir. 2014) (noting that deliberate indifference “is a higher
standard for culpability than mere negligence or even civil recklessness, and as a
consequence, many acts or omissions that would constitute medical malpractice will not
rise to the level of deliberate indifference”).

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U.S. 418, 435 (2009) (explaining that these factors “merge” here). Intruding on the
Department’s prerogatives—whether by requiring it to provide potentially unnecessary
sex-change surgery against the judgment of prison medical professionals or by requiring it
to create a new committee whose members are to be vetted by the district court for correct
views on transgender surgery—constitutes irreparable injury and is contrary to the public
interest. See O’Dell v. Netherland, 112 F.3d 773, 777 (4th Cir. 1997) (staying injunction
pending appeal and explaining “it is not for the federal courts to so micromanage the
Nation’s prisons”); see also Taylor v. Freeman, 34 F.3d 266, 268 (4th Cir. 1994) (“We
immediately stayed the district court’s order . . . of [mandatory] preliminary injunction,”
and explained it is “difficult to imagine an activity in which a State has a stronger interest,
or one that is more intricately bound up with state laws, regulations, and procedures, than
the administration of its prisons.” (internal quotation marks omitted)). In addition, the
Department is unlikely to recoup the taxpayer-funded expenditures the district court is
imposing, whether in paying for the surgery or for hiring the reconstituted panel. See
Mountain Valley Pipeline, LLC v. 6.56 Acres of Land, 915 F.3d 197, 218 (4th Cir. 2019)
(holding that when “monetary damages will be unavailable to remedy financial losses when
litigation ends, there is no bar to treating those losses as irreparable injury”).
Finally, a stay pending appeal will not “substantially injure” the inmate. Ohio, 144
S. Ct. at 2052. There has not yet been a finding that this surgery is necessary for the inmate,
much less urgently so; indeed, the injunction does not even require the Department to
provide surgery, so long as it forms a reconstituted committee that satisfies the district
court. Staying this “disfavored” form of injunction—one that grants relief before trial—

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would simply return the parties to the status quo while we decide the appeal. Pierce v.
N.C. State Bd. of Elections, 97 F.4th 194, 209 (4th Cir. 2024) (internal quotation marks
omitted).
Consideration of these longstanding traditional factors requires a stay pending
appeal. Yet the panel refuses to issue one. It refuses even though denying a stay means
that, by the time our Court issues a decision on the lawfulness of the district court’s order,
our ruling will be of no effect. But perhaps that’s the point.
I respectfully dissent.

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