UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JEANETTE DRIEVER, Plaintiff, v. Civil Action No. 19-1807 (TJK) UNITED STATES OF AMERICA et al., Defendants. MEMORANDUM OPINION Jeanette Driever, a former federal inmate, has sued various government entities and officials to challenge a Bureau of Prisons policy that authorizes housing transgender prisoners according to their gender identity. Proceeding pro se, she asserts violations of her First, Fourth, Fifth, Eighth, and Fourteenth Amendment rights, as well as violations of the Religious Freedom Restoration Act, the Administrative Procedure Act, and the Federal Tort Claims Act. For the reasons explained below, the Court will grant Defendants’ motions to dismiss and deny as futile Driever’s second motion to amend her complaint. I. Background A. Statutory and Regulatory Background The BOP may place a prisoner in “any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau . . . that the Bureau determines to be appropriate and suitable.” 18 U.S.C. § 3621(b). Among other considerations, the BOP must assess “the history and characteristics of the prisoner” and “the resources of the facility contemplated.” Id. Regulations promulgated to implement the Prison Rape Elimination Act of 2003 (PREA), 34 U.S.C. § 30301, 28 C.F.R. § 115 (“PREA Regulations”), also require 1 the BOP to assess all inmates during intake and upon facility transfer, to determine the prisoner’s (1) risk of becoming a victim of sexual abuse, or (2) propensity to commit sexual abuse. See 28 C.F.R. § 115.41. This process, known as “risk screening,” helps determine an inmate’s housing assignment. See id. § 115.42. The PREA Regulations specifically address risk screening and housing designation for transgender prisoners: [i]n deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates, and in making other housing and programming assignments, the agency shall consider on a case-by-case basis whether a placement would ensure the inmate’s health and safety, and whether the placement would present management or security problems. Id. § 115.42(c). In January 2017, the BOP issued Program Statement 5200.04, memorialized in its “Transgender Offender Manual” (“Manual”). Defs.’ Memorandum in Support of Motion to Dismiss Official Capacity Claims (“Defs.’ MTD Mem. I”), ECF No. 13 at 3. The Manual “offer[s] advice and guidance on unique measures related to treatment and management needs of transgender inmates and/or inmates with [Gender Dysphoria], including designation issues[,]” id. (citing Manual ¶ 5). It also delineates standards for the BOP’s Transgender Executive Council (TEC), which oversees the “treatment and management needs of transgender inmates and/or inmates with GD, including designation issues.” Id. In May 2018, the BOP issued and incorporated a “Change Notice” to the Manual, which added new details to certain Manual provisions. Id. at 3 n.1, 3. Relevant here are these additions: the TEC, on a case-by-case basis, will recommend placement of transgender inmates ‘us[ing] biological sex as the initial determination for designation;’ id ¶ 5; (2) the TEC will consider the health and safety of transgender inmates, ‘exploring ...
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