The opinion of the court was delivered by: Deborah A. Robinson United States Magistrate Judge
REPORT AND RECOMMENDATION
Pending for consideration by the undersigned United States Magistrate Judge are Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment (Docket No. 100); and Plaintiff Barbie Black's Motion for Preliminary Injunction (Docket No. 111, Part 2), Plaintiff Barbie Black's Supplemental Motion and Memorandum for Preliminary Injunction (Docket No. 86, Part 2), and Plaintiff Barbie Black's Second Supplemental Motion and Memorandum for a Preliminary Injunction (Docket No. 89, Part 2). *fn1
Counsel for the parties appeared before the undersigned United States Magistrate Judge on December 16, 2002 for oral argument with respect to the pending motions. Upon consideration of the motions, the memoranda in support thereof and in opposition thereto and the entire record herein, the undersigned will recommend that Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment's be granted in part and denied in part, and that Plaintiff's Motion for a Preliminary Injunction be denied.
Plaintiff Barbie Black, a.k.a. Robert L. Black, a transsexual inmate in the custody of the Federal Bureau of Prisons (?BOP"), filed the instant action against Kenneth Moritsugu, the Medical Director of the Federal BOP, individually and in his official capacity, and Kathleen Hawk Sawyer, the Director of the Federal BOP, in her official capacity. *fn2 Amended Complaint ¶¶ 8, 9, 74-86. In Count I, Plaintiff alleges that Defendant Moritsugu, acting under the color of state law, violated Plaintiff's Eighth Amendment rights by failing to provide her with adequate treatment for transsexualism and ?by failing to promulgate any policy which would have required the BOP medical staff to provide [her] with treatment for transsexualism." Amended Complaint ¶ 76. In Count II, Plaintiff alleges that Defendant Hawk, in her official capacity, violated Plaintiff's Eighth Amendment rights ?by failing to enforce the existing policy and by failing to implement any policy which would require the BOP to provide treatment to Ms. Black for transsexualism." Id. ¶ 78. In Count III, Plaintiff alleges a Fifth Amendment Equal Protection claim against Defendant Kendig based on alleged discrimination between transsexual inmates and inmates with other mental disorders ?by requiring transsexuals inmates to prove that they received a specific form of treatment for transsexualism prior to incarceration as a prerequisite to receiving such treatment." Id. ¶ 80. In Count IV, Plaintiff alleges that Defendant Hawk was deliberate indifferent to Plaintiff's safety needs, in violation of the Eighth Amendment, by: (1) ?designating and confining [Plaintiff] to maximum and medium security facilities"; (2) not promulgating a policy which would prohibit the BOP from designating Plaintiff to said facilities; and (3) not enforcing the BOP's existing policy. Id. ¶¶ 84-86. *fn3
After over four and one-half years of protracted litigation and settlement discussions, the parties filed a Stipulation of Settlement and Dismissal (?Settlement Agreement") on June 23, 2001 (Docket No. 84). The Settlement Agreement provided, in pertinent part, that ?[t]he Plaintiff will undergo a three-month diagnostic assessment, conducted by BOP staff" at one of the BOP's medical facilities such as the Federal Medical Center in Butner, North Carolina." Settlement Agreement at 2. ?Dr. Fredrick S. Berlin will perform a diagnostic assessment and propose a treatment plan." Id. Further, the Settlement Agreement provided that ?[a]t the option of the BOP, a second consulting doctor of the BOP's choosing, may perform a diagnostic assessment and propose a treatment plan." Id. Paragraph five of the Settlement Agreement, provides:
The BOP's Medical Director, Dr. Newton E. Kendig, will review the BOP's assessment and treatment plan, together with the assessment(s) and treatment plans(s) [sic] prepared by Dr. Berlin and the BOP's consulting doctor, if any. Dr. Kendig will then decide which plan, or combination of plans, will be offered to plaintiff. If any plan includes a recommendation for hormone therapy, Dr. Kendig will decide whether the BOP should initiate such therapy. His decision will be final, pursuant to the applicable BOP program statement. Id. at 2-3.
In Paragraph 18, the parties provided for the dismissal of Plaintiff's remaining claims without prejudice, and ?the right to reinstate within 120 days after the decision contemplated in paragraph 5." Id. at 4.
On May 10, 2002, Defendant Kendig issued a ?Treatment Plan for Inmate Robert Black" as contemplated by paragraph five of the Settlement Agreement. Pursuant to paragraph 18, Plaintiff reinstated ?her claims previously dismissed without prejudice" on May 21, 2002. Plaintiff's Notice of Reinstatement (Docket No. 109). Thereafter, the instant motions were filed and this Court, with the consent of the parties, granted Plaintiff's motion for leave to file a Second Amended Complaint. *fn4
I. Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment
In evaluating a motion to dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted, all well-pleaded factual allegations of the complaint are to be construed in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Fernando v. Rush-Presbyterian-St. Luke's Medical Center, 882 F. Supp. 119, 121 (N.D. Ill. 1995). The factual allegations of the complaint must be presumed true and liberally construed in favor of plaintiff. Shear v. National Rifle Ass'n,, 606 F.2d 1251, 1253 (D.C. Cir. 1979); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979) (citing Miree v. DeKalb County, Georgia, 433 U.S. 25, 27 n.2 (1977)). The court must accept as true all reasonable inferences to be drawn from the well-pleaded factual allegations. Fernando v. Rush-Presbyterian-St. Luke's Medical Center, 882 F. Supp. 119, 121 (1995).
In determining a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Shear, 606 F.2d at 1253; Soeken v. Herman, No. 98-2024, 1999 WL 77383, at *2 (D.D.C. Feb. 17, 1999). However, if matters outside the pleadings are presented and not excluded by the court, a motion to dismiss for failure to state a claim upon which relief can be granted shall be treated as a motion for summary judgment and decided in accordance with Rule 56. Id.
Alternatively, summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). The nonmoving party cannot merely rest upon the allegations included in the complaint, and instead, must identify the specific facts which demonstrate that there is a genuine issue for trial. Anderson, 477 U.S. at 248. The burden is upon the nonmoving party to demonstrate that there are material facts in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). There is a genuine issue of material fact "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. Material facts are in dispute if they are capable of affecting the outcome of the suit under governing law. Id. In considering a motion for summary judgment, all evidence and inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. ...