MARK L. BROOKS a/k/a JESSICA M. LEWIS,
Plaintiff,
-against-
STAN BERG, et al.,
Defendants.
00-CV-1433
2003 U.S. Dist. Lexis 11911
July 15, 2003, Decided
I. Background
A. Facts
Plaintiff
Mark L. Brooks a/k/a Jessica M. Lewis ("Plaintiff") is an inmate at
Clinton Correctional Facility ("Clinton"), where he n1 is housed in
the Assessment Program and Preparation Unit (APPU). n2 Plaintiff is a
biological male who claims to suffer from gender identity disorder (GID) (also
known as gender dysphoria or transsexualism). The Supreme Court has explained
that transsexuals have "'[a] rare psychiatric disorder in which a person
feels persistently uncomfortable about his or her anatomical sex,' and ...
typically seek medical treatment, including hormone therapy and surgery, to
bring about a permanent sex change." Farmer v. Brennan, 511 U.S. 825, 829,
128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994) (quoting American Medical
Association, Encyclopedia of Medicine 1006 (1989)).
Plaintiff
"believes that she has the gender identity of a female and can find
comfort only through living and presenting as a female." Complaint P7.
While Plaintiff has been aware of his female identity since childhood, he first
became familiar with GID in prison. Id. P11. After immersing himself in
literature on GID, Plaintiff became convinced that he is a transsexual. Id.
"In 1998, Plaintiff realized that no amount of research and knowledge
would ease her suffering, and she decided to seek treatment." Id. P12.
On August
25, 1998, Plaintiff sent a letter to Florence Kaufman, who Plaintiff believed
to be a psychiatrist or psychologist. Id. P13. Plaintiff explains that he
attempted to contact Kaufman because GID is considered a mental health problem
and treatment for GID generally begins with diagnostic psychotherapy. Id.
Plaintiff claims that he never received a response to the August 25 letter. Id.
P14.
On
September 21, 1998, Plaintiff sent a letter to the Mental Health Satellite Unit
at Clinton, addressed simply to the "Satellite Unit." Id. P15.
Plaintiff did not receive a response. Id. Over the next six months Plaintiff
sent several more letters to the Satellite Unit, but all went unanswered. Id.
PP16-18. "Notone single letter from August 1998, through February 1999,
was answered. No diagnosis was given, no treatment was provided, plaintiff was
never seen by any medical staff from any facility medical or mental health
departments, and no reasons were offered for the obvious outright denial of
treatments." Id. P18.
On March 1, 1999, Plaintiff
sent a letter to Stan Berg, the supervisor of the APPU. Id. P20. In his letter,
Plaintiff informed Berg that he had unsuccessfully sought treatment for GID and
asked Berg to intervene on his behalf. Id. P20. Plaintiff did not receive a
response to the March 1 letter and on April 12, 1999, he sent Berg a second
letter requesting treatment.
On September
12, 2000, after exhausting his administrative remedies, Plaintiff filed the
instant complaint pursuant to 42 U.S.C. § 1983. In his first cause of action,
Plaintiff alleges that Defendants n3 failed to provide him with necessary
medical treatment for his serious medical need in violation of the Eighth
Amendment. Plaintiff's second cause of action alleges that Defendants violated
his due process rights by improperly handling his inmate grievance concerning
the denial of medical treatment. Plaintiff asks this Court, inter alia, to
issue an injunction ordering Defendants to provide him "with all of the
necessary medical treatments, primary and secondary, for the adequate and
proper treatment of Transsexualism (Gender Identity Disorder)," and to
award him compensatory and punitive damages. Complaint P29A.
Defendants moved for summary judgment and the Honorable Gustave
J. DiBianco, United States Magistrate Judge, prepared a Report-Recommendation
pursuant to 28 U.S.C. § 636(b) and L.R. 72.3 of the Northern District of New
York. The Magistrate Judge found that Defendants were not deliberately
indifferent to Plaintiff's serious medical needs. The Magistrate Judge also
determined that Defendants Kaufman, Berg, and the John Does were not personally
involved in the alleged violations of Plaintiff's constitutional rights. The
Magistrate Judge found that Plaintiff's due process rights were not violated.
Finally, the Magistrate Judge found that all Defendants were protected by
qualified immunity. Plaintiff filed objections to the Report-Recommendation on
October 30, 2002. After leave of the Court was granted, Plaintiff filed
supplemental objections on March 27, 2003.
B. DOCS Policy On Estrogen
Therapy for Gender Dysphoria
Defendants
have submitted a Department of Correctional Services (DOCS) policy bearing the
subject "Estrogen Therapy for Gender Dysphoria." See DOCS Health
Services Policy Manual § 1.31, Defendants' Ex. J. Section 1.31 of the DOCS Health Services Policy Manual states:
"The New York State Department of Correctional Services continues treating
inmates for Gender Dysphoria identified prior to incarceration." Id. Under
this policy, inmates who can prove that they received hormone therapy prior to
incarceration may be eligible for continued hormone therapy. The policy further
states that "during incarceration transsexual surgical operations are not
honored." Id.
C. Nature of the Complaint
and Relief Sought
Before
turning to the merits of Defendants' motion, it is important to note that
Plaintiff's requests for treatment have been misconstrued by the prison
officials who addressed his inmate grievance and by Defendants in defending
against this action. In his inmate grievance, Plaintiff requests "all of
the minimal, though appropriate treatments and all necessary
examinations/testing." See Inmate Grievance Complaint, attached to
Complaint. While Plaintiff indicated that he believed that the appropriate
treatment would include electrolysis, vocal chord modulation, breast implant
surgery, and sex reassignment surgery, a qualified medical professional would
obviously determine what treatment was "minimal, though appropriate."
The Inmate Grievance Resolution Committee (IGRC) answered Plaintiff's grievance
with the following response: "The Committee advises grievant that per DOCS
policy, cosmetic surgery will not be performed unless it is medically
required." See Memo from I.G.R.C. to M. Brooks at 2, attached to
Complaint. The IGRC thus reduced Plaintiff's request for "all of the
minimal, though appropriate treatments" to a demand for cosmetic surgery.
The IGRC's decision was appealed to Superintendent Senkowski,
who denied Plaintiff's appeal. On the form denying Plaintiff's appeal, the
title of Plaintiff's grievance is inaccurately listed as "Wants genital
reassignment." As grounds for the denial, the Superintendent stated:
Information
provided by Medical reveals that there is no record of grievant receiving any
treatment in this area of concern. The body altering requests are not provided.
Grievant is advised to address his medical issues to that
department.
Denial of Appeal, attached
to Complaint. Again, Plaintiff's request that prison officials intervene to
arrange for him to receive some medical treatment is reduced to "body
altering requests."
In his appeal of the Superintendent's decision to the Central
Office Review Committee (CORC), Plaintiff clearly states that he is not
demanding sex reassignment surgery; rather, he is requesting all treatment
determined by medical professionals to be necessary: "The nature of the
grievance argued that I was never even seen by medical staff, which prevented
them from determining whether or not such treatment was necessary in my case
specifically." Appeal to the CORC, dated June 14, 1999, attached to
Complaint. Plaintiff never received a response from the CORC.
In this
action, Defendants misread Plaintiff's complaint to "assert[] that
[Plaintiff] should have received treatment for [GID] in the form of gender
reassignment surgery and hormonal therapy" and to demand that Defendants
"provide hormonal therapy along with gender reassignment surgery and
various other surgical procedures." See Defendants' Memorandum of Law in
Support of Defendants' Motion for Summary Judgment at 1. Instead, Plaintiff's
Complaint actually alleges that Defendants violated his Eighth Amendment rights
because they "failed to provide any treatment at all, including diagnostic
examinations." Complaint P27A. He demands "all necessary medical
treatment." Complaint P29A. While Plaintiff wishes to receive hormone
therapy and undergo sex reassignment surgery, n4 whether a given treatment is
medically necessary can be determined only by a qualified medical professional.
Accordingly, the Court emphasizes that it is not being asked to determine
precisely how Plaintiff should be treated. n5 Instead, Plaintiff is asking the
Court to force Defendants to allow him to see a doctor who is qualified to
propose a course of treatment.
II. Discussion
A. Standard of Review of the Report-Recommendation
It is the duty of this Court to "make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made." 28 U.S.C. § 636(b). "A
judge of the court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate." Id.
B. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that
summary judgment is proper when "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); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S.
Ct. 2548 (1986). In applying this standard, courts must "'resolve all
ambiguities, and credit all factual inferences that could rationally be drawn,
in favor of the party opposing summary judgment.'" Brown v. Henderson, 257
F.3d 246, 251 (2d Cir. 2001) (quoting Cifra v. General Electric Co., 252 F.3d
205, 216 (2d Cir. 2001)).
Once the moving party meets its initial burden by
demonstrating that no material fact exists for trial, the nonmovant "must
do more than simply show that there is some metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (citations omitted).
The nonmovant "must come forth with evidence sufficient to allow a
reasonable jury to find in her favor." Brown, 257 F.3d at 251 (citation
omitted). Bald assertions or conjecture unsupported by evidence are
insufficient to overcome a motion for summary judgment. Carey v. Crescenzi, 923
F.2d 18, 21 (2d Cir. 1991); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d
118, 121 (2d Cir. 1990).
C. Due Process
Plaintiff alleges that the manner in which his grievance was
handled by prison officials violated his due process rights. In support of this
claim, Plaintiff states that he was not allowed to attend the grievance hearing
or present any additional evidence and that the IGRC's decision was untimely.
The Court agrees with the Magistrate Judge's determination that summary
judgment should be granted in favor of Defendants as to this claim. "Prison grievance procedures do not
confer any substantive right upon an inmate requiring the procedural
protections envisioned by the Fourteenth Amendment." Torres v. Mazzuca,
246 F. Supp.2d 334, 342 (S.D.N.Y. 2003) (citations omitted). "When an
inmate sets forth a constitutional claim in a grievance to prison officials and
the grievance is ignored, the inmate has the right to directly petition the
government for redress of that claim. Flick v. Alba, 932 F.2d 728, 729 (8th
Cir.1991). Therefore, the refusal to process an inmate's grievance or failure
to see to it that grievance are properly processed does not create a claim
under § 1983. Id." Cancel v.
Goord, 2001 U.S. Dist. Lexis 3440, No. 00 Civ. 2042, 2001 WL 303713, at *3
(S.D.N.Y. Mar. 29 2002). The allegations in Plaintiff's complaint thus fail to
rise to the level of a due process violation.
D. Inadequate Medical
Treatment
1. Personal Involvement
It is well-established that
personal involvement is required for the assessment of damages in a §
1983 action. See, e.g., Gaston v. Coughlin, 249 F.3d 156, 165 (2d Cir. 2001).
The personal involvement of a supervisory defendant is
established where:
(1) the defendant
participated directly in the alleged constitutional violation, (2) the
defendant, after being informed of the violation through a report or appeal,
failed to remedy the wrong, (3) the defendant created a policy or custom under
which unconstitutional practices occurred, or allowed the continuance of such a
policy or custom, (4) the defendant was grossly negligent in supervising
subordinates who committed wrongful acts, or (5) the defendant exhibited
deliberate indifference to the rights of inmates by failing to act on
information indicating that unconstitutional acts were occurring.
Colon v. Coughlin, 58 F.3d
865, 873 (2d Cir. 1995) (citation omitted). The receipt of inmate complaints,
without more, is insufficient to establish an official's supervisory liability.
See, e.g., Johnson v. Wright, 234 F. Supp.2d 352, 363 (S.D.N.Y. 2002) (citations
omitted). "Personal involvement will be found, however, where a
supervisory official receives and acts on a prisoner's grievance or otherwise
reviews and responds to a prisoner's complaint." Id. (citations omitted).
a. Defendants Kaufman, Eagan, John Doe # 1, John Doe # 2, John
Doe # 3. The Court finds that summary judgment should be granted to Defendants
Kaufman, Eagen, John Doe # 1, John Doe # 2, and John Doe # 3 for lack of
personal involvement. At most, Plaintiff alleges that these Defendants failed
to respond to his letters.
b. Defendant Worley. Plaintiff's allegations concerning
Defendant Worley are far to vague to support a finding that she was personally
involved in denying Plaintiff medical treatment. In particular, Plaintiff does
not adequately explain Worley's role as "grievance supervisor."
Accordingly, summary judgment is also granted to Defendant Worley.
c. Defendant Berg. The Court finds that there is a dispute as to
the facts surrounding Berg's involvement in the denial of Plaintiff's medical
treatment. Berg has submitted no evidence showing that he
was not responsible for determining whether Plaintiff should receive treatment
for GID. Berg has submitted evidence that he asked William Crosier, the Unit
Chief of the Mental Health Satellite Unit to "arrange for [ Brooks ] to
see someone" regarding his "gender identity crises." See
Defendants' Ex. D. This indicates that
it may have been Berg's duty to respond to Plaintiff's request for
treatment. Berg's memo to Crosier does not establish that Berg
fulfilled this duty because the memo is dated August 24, 1998--one day
before Plaintiff sent his first request for treatment to Florence Kaufman and more
than six months before Plaintiff sent a letter directly to Berg. In other words,
it appears that while Berg may have been responsible for ensuring that
Plaintiff received appropriate treatment, he failed to respond to Plaintiff's
requests for treatment in March and April 1999.
Plaintiff may also be able to establish Berg's supervisory
liability. If Berg failed to make any effort to determine whether Crosier
complied with his direction to arrange for Plaintiff to see someone, Berg may
have been grossly negligent in supervising Crosier. In addition, Plaintiff was
denied all medical treatment for GID in accordance with Section 1.31 of the
DOCS Health Services Policy Manual. As discussed more fully below, it appears
that this policy sanctions unconstitutional practices. The copy of the policy
which Defendants have submitted to the Court indicates that the policy was
"approved by" Berg. See Defendants' Ex. J. Accordingly, it appears
that Berg may have created this policy or allowed it to continue. Defendants
have thus failed to establish as a matter of law that Berg was not personally
involved in the alleged violation of Plaintiff's constitutional rights.
d. Defendant Senkowski. Plaintiff claims that Defendant
Senkowski was personally involved in the denial of medical treatment because
Senkowski denied his appeal from the IGRC's decision and thereby acted on his
grievance. While this denial is on a form that appears to be from Senkowski,
the signature in the box marked "Superintendent's Signature" is
illegible. It seems that the form was actually signed by a Deputy Superintendent.
Defendants contend that because Senkowski delegated the appeal to this Deputy
Superintendent, Senkowski is not personally involved in the denial of
Plaintiff's appeal. However, Defendants have failed to describe precisely what
role Senkowski played in the denial of the appeal. In particular, Defendants
have not explained how inmate appeals are delegated and they have not submitted
any evidence establishing that Senkowski did not review and approve of the
denial of Plaintiff's appeal. Accordingly, Defendants have failed to establish
as a matter of law that Senkowski was not personally involved in the violation
of Plaintiff's constitutional rights.
2. Alleged Inadequate
Medical Treatment
The Eighth
Amendment prohibits the infliction of "cruel and unusual
punishments." U.S. Const. amend VIII. "This includes punishments that
'involve the unnecessary and wonton infliction of pain.'" Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Gregg v. Georgia, 428 U.S.
153, 173, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976)). "Deliberate
indifference to serious medical needs of prisoners constitutes the unnecessary
and wanton infliction of pain proscribed by the Eighth Amendment." Estelle
v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976) (internal
quotation marks omitted). "This standard incorporates both objective and
subjective elements. The objective 'medical need' element measures the severity
of the alleged deprivation, while the subjective 'deliberate indifference'
element ensures that the defendant prison official acted with a sufficiently
culpable state of mind." Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir.
2003) (citations omitted).
When
determining whether an inmate has serious medical needs, courts look to the
following factors: "(1) whether a reasonable doctor or patient would
perceive the medical need in question as 'important and worthy of comment or
treatment,' (2) whether the medical condition significantly affects daily
activities, and (3) 'the existence of chronic and substantial pain.'"
Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003) (quoting Chance, 143 F.3d at
702).
"An official acts with
the requisite deliberate indifference when that official knows of and
disregards an excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference." Chance,
143 F.3d at 702 (quoting Farmer, 511 U.S. at 837).
a. Serious Medical Need
Several
courts have held that GID is a serious
medical need. See Wolfe v. Horn, 130 F. Supp.2d 648, 652 (E.D. Pa. 2001)
("Courts have consistently considered transsexualism a 'serious medical
need' for purposes of the Eighth Amendment. ") (citations omitted); see
also Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000) (assuming for the
purposes of appeal that transsexualism is a serious medical need); Brown v.
Coombe, 1996 U.S. Dist. Lexis 12950, No. 96-CV-476, 1996 WL 507118, at *3
(N.D.N.Y. Sept. 5, 1996) ("In a particular prisoner, gender dysphoria may
be a serious medical need.") (citations omitted). The District Court for
the District of Massachusetts recently stated that "[a] gender identity disorder is not ... necessarily a
serious medical need for which the Eighth Amendment requires treatment."
Kosilek, 221 F. Supp.2d at 184. The Court explained that milder gender identity
disorders can be treated without resort to psychotherapy, hormone treatment, or
sex reassignment therapy. Id. In this case, Defendants have not argued that
Plaintiff's GID is not a serious medical need.
b. Deliberate Indifference
"It is well-established that mere disagreement over the
proper treatment does not create a constitutional claim. So long as the treatment given is adequate, the
fact that a prisoner might prefer a different treatment does not give rise to
an Eighth Amendment violation." Chance, 143 F.3d at 703 (citation
omitted). Courts have found that under the Eighth Amendment inmates with GID
must receive some form of treatment. See Meriwether v. Faulkner, 821 F.2d 408,
413 (7th Cir. 1987) (holding that plaintiff inmate with GID states a proper
Eighth Amendment claim by alleging that defendants denied her all treatment and
noting that "she does not have a right to any particular type of
treatment, such as estrogen therapy"); Wolfe, 130 F. Supp.2d at 653
(denying defendants' motion for summary judgment in part because there was a
question of fact as to whether inmate received any treatment for GID); Brown,
1996 U.S. Dist. Lexis 12950, 1996 WL 507118, at *4 n.3 ("I caution
defendants that if plaintiff does indeed suffer from gender dysphoria, they
must provide treatment although not necessarily hormone therapy.")
(citation omitted).
In
addition, courts have held that the treatment plan for an inmate with GID must
be formulated by a medical professional and not by prison administrators. In
Allard v. Gomez, 9 Fed. Appx. 793, 2001 WL 638413, at *1 (9th Cir. 2001), the
Ninth Circuit reversed a grant of summary judgment in favor of the defendants
because there was a question of fact as to whether the plaintiff, an inmate
with GID, was denied hormone treatment recommended by a doctor "on the
basis of an individualized medical evaluation or as a result of a blanket rule,
the application of which constituted deliberate indifference to [the inmate's]
medical needs." Similarly, the District Court for the District of
Massachusetts held that the treatment
of an inmate with GID was inadequate when "no informed medical judgment
has been made." Kosilek, 221 F. Supp.2d at 158. These decisions are
consistent with Chance, in which the Second Circuit suggested that the medical
treatment of inmates must be based on "sound medical judgment."
Chance, 143 F.3d at 704.
Defendants
do not contest Plaintiff's claim that he was never treated for GID
notwithstanding numerous requests for treatment. In addition, Defendants have
not provided the Court with any evidence showing that the decision to refuse
Plaintiff treatment was based on sound medical judgment. Finally, Defendants
have failed to submit any evidence that they were not aware that Plaintiff's
health could be jeopardized if treatment was refused. Accordingly, the Court
finds that Defendants have failed to establish, as a matter of law, that
Plaintiff was provided adequate treatment for his serious medical needs.
E. Qualified Immunity
"Qualified immunity shields public officials from
liability for civil damages if their actions were objectively reasonable, as
evaluated in the context of legal rules that were 'clearly established' at the
time." Poe v. Leonard, 282 F.3d 123, 132 (2d Cir. 2002) (citations
omitted). "Where the defendant seeks qualified immunity, a ruling on that
issue should be made early in the proceedings so that the costs and expenses of
trial are avoided where the defense is dispositive." Saucier v. Katz, 533
U.S. 194, 200, 150 L. Ed. 2d 272, 121 S. Ct. 2151 (2001).
The Supreme Court recently explained that when considering a defendant's assertion of
qualified immunity, courts must first address the following question:
"Taken in the light most favorable to the party asserting the injury, do
the facts alleged show the officer's conduct violated a constitutional
right?" Saucier, 533 U.S. at 201. If the officer's conduct violated a
constitutional right the Court must then determine whether the right was
"clearly established" when the violation occurred. Id. A right is
clearly established when "it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted." Id. at 202
(citations omitted).
The Court
has already found, supra, that the facts alleged in Plaintiff's complaint, if
true, show that Defendants violated Plaintiff's Eighth Amendment rights.
Accordingly, the Court turns to the second step of the qualified immunity
inquiry: whether this right was clearly established at the time of the alleged
violation. "This inquiry, it is
vital to note, must be undertaken in light of the specific context of the case,
not as a broad general proposition ...." Id. at 201. The relevant question
is not whether it was clearly established that Plaintiff has Eighth Amendment
rights. Rather, the Court must ask "whether the state of the law [at the
time of the alleged constitutional violation] gave [Defendants] fair warning
that their alleged treatment of [Plaintiff] was unconstitutional." Hope v.
Pelzer, 536 U.S. 730, 741, 153 L. Ed. 2d 666, 122 S. Ct. 2508 (2002).
The absence of binding precedent squarely addressing the facts
presented in this case does not inexorably lead to the conclusion that the
constitutional right allegedly violated here was not clearly established.
Neither the Supreme Court nor the Second Circuit has held that a transsexual
inmate has an Eighth Amendment right to see a medical professional able to
prescribe some medical treatment. However,
"a general constitutional rule already identified in the decisional
law may apply with obvious clarity to the specific conduct in question, even
though the very action in question has not previously been held unlawful."
Id. (internal quotations omitted). Consequently, "officials can still be
on notice that their conduct violates established law even in novel factual
circumstances." Id.
Defendants
contend that they are entitled to qualified immunity because it was objectively
reasonable for them to believe that their actions did not violate the Eighth
Amendment. In particular, Defendants assert that the refusal to provide any
medical treatment to Plaintiff was objectively reasonable because such conduct
comports with DOCS policy. n6 Although Defendants fail to cite a case in
support of this argument, courts have found that a defendant's claim of qualified immunity is bolstered by evidence
that he was following orders when he acted unconstitutionally. See, e.g, Lauro
v. Charles, 219 F.3d 202, 216 n.10 (2d Cir. 2000). This does not mean that a
defendant is entitled to qualified immunity whenever he engages in conduct that
is sanctioned by his supervisors. As the Supreme Court explained, a policy
"could not make reasonable a belief that was contrary to a decided body of
case law." Wilson v. Layne, 526 U.S. 603, 617, 143 L. Ed. 2d 818, 119 S.
Ct. 1692 (1999). Accordingly, the Second Circuit has held that defendants who
act pursuant to a facially invalid policy are not entitled to qualified
immunity. See Walsh v. Franco, 849 F.2d 66, 69-70 (2d Cir. 1988) (affirming
district court's denial of summary judgment on qualified immunity grounds where
plaintiff was strip searched in accordance with a prison's blanket policy of
conducting strip searches of all misdemeanor arrestees); Diamondstone v.
Macaluso, 148 F.3d 113, 116 (2d Cir. 1998) (finding that defendant police
officer who ticketed motorist after traffic court rulings established that the
ticketing was improper was not entitled to qualified immunity simply because
his superiors directed him to continue the ticketing).
As noted above, Section 1.31 of the DOCS Health Services Policy
Manual provides for the continued treatment of inmates who were diagnosed with
GID prior to incarceration. The policy's silence regarding the treatment of
transsexual inmates who were not diagnosed with GID prior to incarceration is apparently
read by prison officials to indicate that DOCS will not provide any treatment
to these inmates. While
Defendants rely heavily on this policy as justification for their actions, they
do not explain the puzzling distinction that the policy makes between those
inmates who were diagnosed before incarceration and those who were diagnosed
after being incarcerated. Surely inmates with diabetes, schizophrenia, or any
other serious medical need are not denied treatment simply because their
conditions were not diagnosed prior to incarceration.
One explanation for the distinction may be found in cases
dealing with the treatment of transsexual inmates who were taking hormones
before being incarcerated. See Phillips v. Michigan Dep't of Corrections, 731 F.
Supp. 792 (W.D. Mich. 1990); Wolfe, 130 F. Supp.2d at 653. The abrupt cessation
of hormone therapy can "wreak havoc on [the inmate's] physical and
emotional state." Phillips, 731 F. Supp. at 800. Accordingly, courts have
held that prisons which refuse to provide hormones to inmates who were taking
hormones before they were incarcerated may violate the Eighth Amendment.
Phillips, 371 F. Supp. at 800; Wolfe, 130 F. Supp.2d at 653. Section 1.31 thus
may be aimed at instructing prison officials to maintain hormone treatment
which began prior to incarceration. Nevertheless, the effect of the policy has
been to deny all treatment for transsexual inmates who cannot establish that
they were diagnosed with GID prior to incarceration.
This
blanket denial of medical treatment is contrary to a decided body of case
law. Prisons must provide inmates with
serious medical needs some treatment based on sound medical judgment. There is
no exception to this rule for serious medical needs that are first diagnosed in
prison. Prison officials are thus obliged to determine whether Plaintiff has a
serious medical need and, if so, to provide him with at least some treatment.
Prison officials cannot deny transsexual inmates all medical treatment simply
by referring to a prison policy which makes a seemingly arbitrary distinction
between inmates who were and were not diagnosed with GID prior to
incarceration. In light of the numerous cases which hold that prison officials
may not deny transsexual inmates all medical attention, especially when this
denial is not based on sound medical judgment, the Court finds that Defendants
have failed to establish as a matter of law that their actions were objectively
reasonable. n7
III. Conclusion
Accordingly, it is hereby
ORDERED, that Defendants' motion for summary judgment is GRANTED
as to Plaintiff's due process claim and as to his Eighth Amendment claims
against Defendants Kaufman, Eagen, Worley, John Doe # 1, John Doe # 2, and John
Doe # 3, and DENIED in all other respects; and it is further
ORDERED, that the Clerk serve a copy of this order on all
parties by regular mail.
IT IS SO ORDERED.
DATED: July 15, 2003
HONORABLE LAWRENCE E.
KAHN
United States District Judge
FOOTNOTES:
n1 The
Court recognizes that Plaintiff prefers to be referred to with female pronouns.
However, because Plaintiff is a biological male, the Court has decided to use
male pronouns.
n2 The Second Circuit has described the APPU
as follows:
The APPU
... offers a 'diagnostic and treatment program' to help victim-prone or fearful
individuals develop inner strength and coping skills so as to be able to move
back into the general population. The Unit has a variety of programs available
to inmates, including an academic program, psychological counseling, and three
vocational shops.
Hall v.
Unknown Named Agents of New York State Dep't for Correctional Services for APPU
at Clinton Prison, 825 F.2d 642, 644 (2d Cir. 1987).
n3
Plaintiff names the Mental Health Satellite Unit employees who are responsible
for receiving and distributing incoming mail as John Does. Complaint P19
n4 In his Complaint, Plaintiff suggests that
"necessary medical treatment" includes electrolysis, hormone therapy,
vocal chord modulation surgery, and sex reassignment surgery. Complaint P29A.
n5 Cases
involving transsexual inmates reflect some disagreement as to the proper
treatment of GID. Compare Maggert v. Hanks, 131 F.3d 670, 671 (7th Cir. 1997)
("The cure for the male transsexual consists not of psychiatric treatment
designed to make the patient content with his biological sexual identity-that
doesn't work-but of estrogen therapy designed to create the secondary sexual
characteristics of a woman followed by the surgical removal of the genitals and
the construction of a vagina-substitute out of penile tissue.") (citing
American Medical Association, Encyclopedia of Medicine 896 (1989); 4B James G.
Zimmerly, Lawyers Medical Cyclopedia of Personal Injuries and Allied
Specialities § 31.33b (3d ed. 1992)) with Kosilek v. Maloney, 221 F. Supp.2d
156, 158 (D. Mass. 2002) (noting that according to "protocols used by
qualified professionals in the United States to treat individuals suffering
from gender identity disorders ... psychotherapy with a qualified therapist is
sufficient treatment for some individuals").
n6 The
Court notes that Berg's reliance on the DOCS policy cannot establish his
qualified immunity if the evidence shows that he promulgated the policy.
n7 The
Court recognizes that a contrary conclusion was reached in Kosilek v. Nelson,
2000 U.S. Dist. Lexis 13355, No. C.A. 92-12820, 2000 WL 1346898 (D. Mass. Sept.
12, 2000) (holding that "at least since 1996, it has not been clearly established
that a transsexual has a constitutional right to any therapy or treatment while
incarcerated") (citing Long v. Nix, 86 F.3d 761, 765 n.3 (8th Cir. 1996);
Maggert, 131 F.3d at 671; Farmer v. Moritsugu, 333 U.S. App. D.C. 319, 163 F.3d
610, 614-15 (D.C. Cir. 1998)). In the Court's view, the cases cited in Kosilek
do not undermine the Court's refusal to find that Defendants are entitled to
qualified immunity.
In Long, the Eighth Circuit noted that a
prior ruling that transsexualism is a serious medical "may be in doubt in
light of Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 128 L. Ed. 2d 811
(1994), and subsequent cases." Long, 86 F.3d at 765 n.3. The Court did not
pursue this issue, however, because it was undisputed that the plaintiff was not
a transsexual. Id. In addition, Long did not involve the denial of all medical
treatment. See id. at 765 (noting that the "record is full of evidence of
the attempts of the prison medical staff to evaluate Long's psychological
problems and Long's refusal to cooperate").
In Maggert, the Seventh Circuit stated that
"except in exceptional circumstances that we do not foresee, the Eighth
Amendment does not entitle a prison inmate to curative treatment for his gender
dysphoria." Maggert v. Hanks, 131 F.3d 670 (7th Cir. 1997). This dicta was
based on the conclusion-rejected in Kosilek, 221 F. Supp.2d at 192-that the
only effective treatment for GID is hormone therapy and sex reassignment
surgery. Maggert, 131 F.3d 671; see also supra note 5.
In Farmer v. Moritsugu, the D.C. Circuit
held that the defendant, the Medical Director of the Bureau of Prisons, was
entitled to qualified immunity because he was not responsible for diagnosing
and treating the plaintiff. Moritsugu, 163 F.3d at 615. In addition, the Court
noted that the plaintiff had undergone counseling and that "mental health
personnel were available to assist her should she have specific needs for
psychotherapy." Id. at 615.