Johnson v. SandersJohnson v. Sanders
PUBLISH
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
FILED United States Court of Appeals Tenth Circuit November 5, 2024 Christopher M. Wolpert Clerk of Court
Hannah Keidan and Carleton Plourde, Student Advocates (Steven J. Alagna, Supervising Attorney; Nicholas Blum, Jacob Cogdill, and Madeline Wingert, Student Advocates, on the briefs), Washington University School of Law, Appellate Clinic, St. Louis, Missouri, for Plaintiff - Appellant.
Darrell L. Moore, J. Ralph Moore, P.C., Pryor, Oklahoma, for Defendants - Appellees.
Before TYMKOVICH, MATHESON, and McHUGH, Circuit Judges.
McHUGH, Circuit Judge.
Plaintiff-Appellant Lamone Johnson, a male-to-female transgender woman,1 appeals the district court‘s grant of summary judgment against her on a single
Ms. Johnson asserted the claim against two Oklahoma prison employees—a prison physician and the prison‘s health services administrator—flowing from the decision to discontinue the hormone replacement therapy (HRT) Ms. Johnson had been taking for three years prior to her incarceration at the
On appeal, Ms. Johnson asserts that a reasonable jury could find deliberate indifference under three distinct theories. Because Ms. Johnson has not adduced record facts sufficient to support a jury‘s determination that Defendants acted with deliberate indifference under any theory advanced, we affirm the district court‘s grant of summary judgment.
I. BACKGROUND
While Ms. Johnson was detained at the Oklahoma County jail pending sentencing on state charges, a jail physician diagnosed her with gender dysphoria and prescribed her two HRT medications—estradiol, an estrogen steroid hormone, and spironolactone, a testosterone blocker. Following sentencing, on September 22, 2016, Ms. Johnson was remanded to the custody of the Oklahoma Department of Corrections (ODOC). Thereafter, the ODOC transferred Ms. Johnson through three additional ODOC prisons over the course of fourteen months. At all times, Ms. Johnson was continued on her HRT regimen.
By March 26, 2018, the ODOC had transferred Ms. Johnson to the Dick Conner Correctional Center. Less than a month later, Ms. Johnson submitted a health services request seeking an increase to her dosages of HRT. Three days later, the prison informed Ms. Johnson that she had “been scheduled to discuss with the provider.” ROA Vol. I at 118.
On May 1, 2018, a staff psychologist, Patricia L. Jones, Psy.D., who is not named as a defendant in this action, evaluated Ms. Johnson. Less than two weеks later, on May 11, Dr. Jones issued a report (“the Jones Report“) which purported to “document the presence or absence of the diagnostic criteria for Gender Dysphoria per the DSM-5 [i.e., the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders], as well as any additional information relevant to the question of if it is in the best interest of the inmate‘s psychological health to provide hormone therapy.” ROA Vol. I at 122.
After setting forth Ms. Johnson‘s history, the Jones Report summarized the results of three self-report assessments completed by Ms. Johnson, including the “Minnesota Multiphasic Personality Inventory-2” (MMPI-2) and the “Gender Identity/Gender Dysphoria Questionnaire for Adults and Adolescents” (GIDYQ-AA). Id. at 126. Dr. Jones credited Ms. Johnson‘s MMPI-2 responses to conclude that Ms. Johnson had “diagnostic markers of both Histrionic and Narcissistic Personality Disorders.” Id. at 127. Individuals with this result, Dr. Jones explained, “have delusions of grandeur” and “blame others for what they perсeive to be injustices done to them.” Id.
The result of Ms. Johnson‘s GIDYQ-AA assessment—which produces a number score “with lower scores showing increased levels of gender dysphoria“—was a score of 1.4, which was “extremely low compared to the mean of biological adult males experiencing gender dysphoria (M [Mean] = 2.49, SD [Standard Deviation] = .41) as opposed to biological male, heterosexual adults not experiencing gender dysphoria (M = 4.85, SD = .22).” Id. at 126-27. But Dr. Jones doubted the validity of Ms.
Next, Dr. Jones discussed and applied the DSM-V‘s standards for the diagnosis of gender dysphoria, which requires that “two criteria be met.” Id. The first criterion “relates to the incongruence between one‘s experienced/expressed gender and the assigned gender . . . [as] manifested by two of six possible factors.” Id. Dr. Jones concluded that Ms. Johnson satisfied more than two of the six possible factors, though she seemingly doubted at least some of Ms. Johnson‘s answers regarding those factors. See id. at 128 (“Inmate Johnson desires to be seen as a woman, but spent no time or detail discussing what it would mean to be treated as a woman.“); id. (“Inmate Johnson only expressed interests in specific traditional female roles when describing his employment history. Inmate Johnson had far more focus on his role as an entertainer than as a woman.“).
But as to the second DSM-V criterion for gender dysphoria—“association of the condition with clinically significant distress in social, occupational, and/or other areas of functioning“—Dr. Jones concluded that “Inmate Johnson does not appear to be experiencing clinical levels of anxiety and/or depression related to Gender Dysphoria.” Id. Rather, Dr. Jones opined, “Inmate Johnson appears to be experiencing significant levels of distress due to a diagnostically relevant Personality Disorder.” Id.
In a paragraph titled “Conclusions and Recommendations,” Dr. Jones opined as follows:
It is the opinion of the evaluating psychologist that the distress fueled by Inmate Johnson‘s Personality Disorder was expressed by Inmate Johnson through the use of his sexuality via social media, on stage adult entertainment, and prostitution. Inmate Johnson‘s use of gender and sexuality to attract attention provided ample opportunity for him to receive positive attention, as noted in his comment during the interview that “Facebook is where I found the most support.” The current political climate provided, and continues to provide, a socially defensible position for calling out anyone who declines to applaud Inmate Johnson‘s presentations as “haters.” This provides Inmate Johnson with attentional support for the symptoms of Histrionic Personality Disorder, as well as a ready supply of the anticipated “unworthy” people needed to continue supporting the features of Narcissistic Personality Disorder.
Id. at 128-29. Dr. Jones thus concluded that “Inmate Johnson does not meet the criteria for Gender Dysphoria,” and that “the distress fueled by a documented personality disorder is the primary factor fueling his dysphoric mood.” Id. at 121.
The Jones Report concluded by noting that Ms. Johnson was “currently receiving Hormone Treatment for Gender Dysphoria,” and that it would be up to “medical staff” to “determine[] if continuation, advancement, or discontinuation of the Hormone Treatment is in the best interest of Inmate Johnson.” Id. at 129. And in the report‘s cover page, Dr. Jones “advised that Inmate Johnson meet with his primary QMHP [qualified mental health provider] tо discuss this summary and the general findings.” Id. at 121.
Five days later, on May 16, Ms. Johnson was transferred to Davis Correctional Facility (DCF), a private prison owned and
Less than a week later, on May 22, Ms. Johnson met with Victoria Shepherd, DCF‘s mental health coordinator. During that meeting, as summarized by Ms. Shepherd, Ms. Johnson “state[d] that he no longer feels that he is in need of mental health services and would like to discontinue” remeron—an antidepressant medication—because, as Ms. Johnson told her, “my hormones cover my depression, so I don‘t need anything now. I‘m doing ok. I am respected here.” ROA Vol. III at 180. Ms. Shepherd accordingly had Ms. Johnson sign a waiver of “all mental health services including Remeron,” id. at 181, and Ms. Johnson was advised that she should submit “a sick call request” in the evеnt she felt she needed mental health “services again in the future,” id. at 180.
The next day, May 23, Defendant Dr. Sanders, a DCF physician, reviewed Ms. Johnson‘s health records, including the Jones Report. Dr. Sanders developed the “opinion that in order for us to remain consistent with [O]DOC policy,” Ms. Johnson‘s HRT “would need to be discontinued.” ROA Vol. II at 43. Dr. Sanders ordered a taper of those medications to minimize “unwanted side effects,” and he assigned mental health personnel to Ms. Johnson pursuant to his recommendation that she “have follow-up with the facility‘s mental health staff.” Id.
The ODOC policy referenced by Dr. Sanders—OP-140147, “Management of Gender Nonconforming Inmates” (“the Policy“), id. at 60—states as follows with respect to HRT:
- Hormonal treatment of inmates with Gender Dysphoria may be undertaken only after all the following occurs;
- Diagnosis of Gender Dysphoria has been confirmed by a qualified mental health professional based on the diagnostic criteria of the Diagnostic and Statistical Manual of Mental Disorders.
- A . . . “Male to Female Hormonal Therapy Risk and Information Form” is read, signed by the inmate and scanned into the inmate‘s electronic health record.
- Once the above steps have been completed, hormonal treatment may be considered by the qualified medical provider if the following:
- Hormonal treatment was initiated prior to incarceration; or
- Surgical castration has occurred, verified by examination and/or medical records; or
- The facility medical provider determines hormone treatment is medically necessary and approval from the Chief Medical Officer is obtained.
Id. at 63-64.
The same day that Dr. Sanders began tapering off Ms. Johnson‘s HRT, Ms. Shepherd and DCF‘s health services administrator, Defendant Ray Larimer, R.N., met with Ms. Johnson to communicate that decision. Nurse Larimer “explained to inmate Johnson that without a confirmed diagnosis of Gender Dysphoria by a qualified mental health professional, the facility‘s medical provider (Dr. Sanders) and mental health provider ([psychiatrist] Dr. Lantrip) had concluded that the previously prescribed hormonal therapy would be reduced and then eventually discontinued.”2 ROA Vol. II at 58.
On July 6, 2018, Ms. Johnson submitted a “request for health services” asking to speak with Dr. Sanders regarding “hormone therapy issues.” Id. at 357. The next day, she was told that the request had been “referred to [the] provider,” id. at 357, and four days later, Dr. Sanders responded as follows: “[Y]ou have been evaluated by a designated specialist from ODOC and found that you do not qualify for [HRT] at this time. We have to follow ODOC policy and procedures and due to their findings we are not allowed to over-ride them,” ROA Vol. III at 74. Ms. Johnson did not grieve this response.
On October 6, 2018, Ms. Johnson submitted another request to Dr. Sanders complaining of “pain and swelling in [her] breast as well as [her] back,” and again requesting that her HRT be renewed. ROA Vol. I at 352-53. A little over a week later she was referred to Dr. Sanders‘s July 10, 2018, response and was reminded that she was “currently on a weening dose” of spironolactone. Id. at 352.
Almost six months later, on March 31, 2019, Ms. Johnson submitted a request for health services, complaining that she was “in pain[;] my back, breast, neck is hurting.” Id. at 363. Two days later, DCF staff referred the request to the “provider,” and noted that Ms. Johnson had “refused” over-the-counter pain medications. Id.
On May 2, 2019, Ms. Johnson submitted a request for health services, asking “to speak with the QMHP (Qualified Mental Health Professional) about my gender dysphoria diagnosis.” ROA Vol. II at 373. DCF staff referred the request to mental health personnel, but the record is silent as to what occurred thereafter.
On June 6, 2019, Ms. Johnson submitted a request for health services asking to
Ms. Johnson then appealed the denial of that grievance. At some unknown time before this appeal, Ms. Johnson received a copy of the Jones Report. The appeal detailed Ms. Johnson‘s attempts to meet with Dr. Sanders regarding Dr. Jones‘s diagnosis and the decision to discontinue her HRT. “The purpose of this meeting,” Ms. Johnson explained, “was a[n] attempt to show my previous medical records and results of another evaluation (prior to my incarceration) and to show documentation written by [an] ‘experienced professional’ within gender dysphoria.” ROA Vol. II at 367-68. The Jones Report, Ms. Johnson explained, “never stated to stop my HRT. That was a decision that Dr. Sanders [and] Ray Larimer made . . . .” Id. at 368. She complained that she was “experiencing mental and physical pain” due to that decision, and that her “body [wa]s making a transformation from years of healing my gеnder dysphoria to now stopping it[.]” Id. “I am [severely] depressed without my HRT,” Ms. Johnson continued, “[i]t makes me feel less of a woman.” Id. Ms. Johnson also asserted that Dr. Jones was an “inexperienced psychologist[],” and that such psychologists “often misdiagnose gender dysphoria for a ‘psychiatric disorder.‘” Id. Despite Ms. Johnson‘s complaints about Dr. Jones‘s diagnosis, however, the only relief she requested in this appeal was to “reinstate [her] HRT.” Id.
That appeal was denied, again in reliance on the Jones Report: “According to your record, a Qualified Mental Health Professional (QMPH) completed a Gender Dysphoria Forensic Mental Health Assessment report on May 11, 2018[,] and concluded you do not have a current diagnosis of Gender Dysphoria. Therefore, your request to reinstate your hormone replacement therapy (HRT) is denied.” Id. at 369.
While the above appeal was pending, on July 24, 2019, Ms. Johnson submitted a request fоr health services asking to be “reevaluated for ‘gender dysphoria‘” by Dr. Jones. Id. at 370. She was told that the health services administrator, Nurse Larimer, would “look into this,” but the record does not disclose what occurred thereafter in connection with this request. Id.
On August 14, 2019, Ms. Johnson filed this action. In the operative first amended complaint, Ms. Johnson asserted four
“only monetary damages because she is no longer in ODOC custody.” Appellant‘s Suppl. Br. at 15 n.5.
On April 2, 2021, Defendants moved for summary judgment on the Eighth Amendment claim, arguing that the combination of Dr. Jones‘s rejection of a gender dysphoria diagnosis and the Policy precluded a finding of delibеrate indifference, and that Ms. Johnson‘s complaint amounted to no more than a difference of opinion regarding the appropriate care to which she was entitled.
The district court granted summary judgment to Defendants on the Eighth Amendment claim. The court adopted Defendants’ arguments that no reasonable jury could find deliberate indifference because (1) the Policy precluded Defendants from considering whether to continue Ms. Johnson‘s HRT, and (2) Ms. Johnson‘s preferred treatment—HRT—was merely different from what Defendants provided, and that the care she was offered was constitutionally adequate.
This timely appeal followed.
II. STANDARD OF REVIEW
We review a district court‘s grant of summary judgment de novo. See Bird v. W. Valley City, 832 F.3d 1188, 1199 (10th Cir. 2016). In doing so, we stand in the same shoes as the district court and “must view the factual record and make reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.” Id. (quotation marks omitted). We will affirm a grant of summary judgment only if “there is no genuine dispute as to any material fact and thе movant is entitled to judgment as a matter of law.”
III. ANALYSIS
The Eighth Amendment proscribes the infliction of “cruel and unusual punishments” against convicted prisoners.
The deliberate indifference standard lies “somewhere between the poles of negligence at one end and purpose or knowledge at the other.” Farmer v. Brennan, 511 U.S. 825, 836 (1994). As such, the standard encompasses both an objective and subjective component. See Est. of Beauford v. Mesa County., 35 F.4th 1248, 1262 (10th Cir. 2022). “The objeсtive component examines whether the medical condition or harm claimed by the inmate was sufficiently serious to be cognizable,” while the “subjective component analysis then considers whether the defendant knew of and disregarded the serious risk to the inmate‘s health.” Prince v. Sheriff of Carter Cnty., 28 F.4th 1033, 1044 (10th Cir. 2022) (internal quotation marks omitted). “[T]his level of intent can be demonstrated through circumstantial evidence.” Mata v. Saiz, 427 F.3d 745, 752 (10th Cir. 2005).
Under the subjective component, “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.” Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quoting Farmer, 511 U.S. at 837). “A plaintiff ‘need not show that a prison official acted or failed to act believing that harm actually would befall an inmate.‘” Paugh v. Uintah County, 47 F.4th 1139, 1156 (10th Cir. 2022) (quoting Farmer, 511 U.S. at 842). “Rather, it is enough that an official ‘merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist.‘” Id. (quoting Farmer, 511 U.S. at 843 n.8). But “a prisoner who merely disagrees with a diagnоsis or a prescribed course of treatment does not state a constitutional violation.” Perkins v. Kan. Dep‘t of Corr., 165 F.3d 803, 811 (10th Cir. 1999).
Ms. Johnson claims, and Defendants do not dispute, that “the medical need for gender-affirming care is ‘sufficiently serious’ to satisfy the objective component” of the deliberate indifference standard. Appellant‘s Suppl. Br. at 19. We therefore assume, without deciding, that Ms. Johnson has satisfied the objective component of deliberate indifference. See Hardeman v. Smash, No. 21-7018, 2022 WL 470741, at *3 (10th Cir. Feb. 16, 2022) (unpublished) (“We assume, without deciding, that gender dysphoria satisfies the objective component.“);4 Lamb v. Norwood, 899 F.3d 1159, 1162 (10th Cir. 2018) (“The seriousness of Michelle‘s [gender dysphoria] is uncontested for purposes of summary judgment. Thus, the only substantive issue is whether the existing treatment constituted deliberate indifference to Michelle‘s gender dysphoria.“).
Ms. Johnson presents three theories of deliberate indifference that she submits a reasonable jury could credit based on the summary judgment record. First, she asserts that a reasonable jury could find Defendants acted with deliberate indifference by discontinuing her HRT in the first instance. Second, she argues that a reasonable jury could conclude that even after the cessation of her HRT, Defendants denied her any form of gender affirming care, thereby evincing deliberate indifference. And finally, Ms. Johnson urges that a reasonable jury could find that Defendants acted with deliberate indifference in failing to discharge their “gatekeeping” obligation, which, Ms. Johnson posits, required Defendants to arrange for a second psychological evaluation for the presence or absence of gender dysphoria.
We analyze each theory below and conclude that no reasonable jury could find deliberate indifference on these facts. We therefore affirm the judgment of the district court.
A. HRT Discontinuation
Ms. Johnson‘s first theory is that Defendants acted with deliberate indifference by intentiоnally interfering with the course of HRT treatment she had been prescribed for years before she arrived at DCF.
The parties’ briefing—both before the district court and on appeal—largely fails
A defendant‘s “[f]ailure to act in accordance with or intentional interference with prescribed medical treatment or instructions can give rise to an Eighth Amendment claim.” Paugh, 47 F.4th at 1162 (quotation marks omitted). Indeed, in holding that deliberate indifference to serious medical needs violates the Eighth Amendment, the Supreme Court contemplated that such standard may be satisfied when a defendant “intentionally interfere[s] with [medical] treatment once prescribed.” Estelle, 429 U.S. at 105.
Ms. Johnson argues that because she had been prescribed HRT by medical providers at other ODOC facilities, Dr. Sanders‘s decision to discontinue this treatment at DCF amounts to dеliberately indifferent “interference” with medical care. Appellant‘s Suppl. Br. at 25. The problem with this reasoning, however, is that Dr. Sanders did not “interfere” with prescribed treatment. Rather, Dr. Sanders, as a medical provider, decided to change the prescribed treatment.
In this respect, Paugh, a case on which Ms. Johnson heavily relies, is instructive. In that case, a detainee was examined at a non-correctional hospital in advance of his admission into a county jail. Paugh, 47 F.4th at 1148. The examining physician diagnosed him with alcohol withdrawal and prescribed him medication to “mitigate [his] alcohol-withdrawal symptoms.” Id. When the arresting officers brought him to the county jail, they apprised jail personnel of his alcohol withdrawal diagnosis as well as the medication he was prescribed to treat it. Id. at 1149. Where the record established that a jailer later failed to give the inmate his medication “when he knew about [the inmate‘s] need for it,” we concluded that a jury could find deliberate indifference. Id. at 1162-63; accord Casanova v. Ulibarri, 622 F. App‘x 724, 728-29 (10th Cir. 2015) (unpublished) (finding deliberate indifference satisfied where prison warden personally refused inmate access to medical equipment for which he had prescription).
By contrast, here, Dr. Sanders was not in the position of a jail official tasked merely with implementing a course of treatment. Rather, as Ms. Johnson‘s treating physician, he was charged with directing the appropriate course of medical treatment following Dr. Jones‘s rejection of a gender dysphoria diagnosis. Thus, to survive summary judgment, Ms. Johnson must adduce record facts on which a jury could find that in deciding to taper and then discontinue Ms. Johnson‘s HRT, Dr.
However, we do not agree that Dr. Sanders‘s compliance with the Policy immunized him from liability under
But although compliance with policy bears on a defendant‘s state of mind, it is not dispositive because correctional policy does not define the rights and obligations enshrined in the Constitution. It is uncontroversial, for example, that a defendant‘s
deviation from correctional poliсy, without more, does not amount to a constitutional violation. See George ex rel. Bradshaw v. Beaver County., 32 F.4th 1246, 1254 (10th Cir. 2022) (“Failing to comply with jail policy does not amount to a constitutional violation on its own.“). The standards established by the Constitution are not necessarily coextensive with those imposed by correctional policy: “[V]iolation of a prison regulation does not give rise to an
Where a defendant has subjective knowledge that a course of action or inaction required by policy creates or fails to address a serious risk to an inmate‘s health or safety, he may not escape constitutional liability by disregarding such risk in compliance with the policy. In such circumstances, the Constitution demands more of state actors charged with overseeing the carceral punishment of a convicted prisoner.
But where, as here, there are no record facts establishing Dr. Sanders‘s actual knowledge—or awareness “of facts from which [an] inference could be drawn“—that a substantial risk of serious harm exists, no reasonable jury could find that he acted with deliberate indifference by hewing to correctional policy. The district court therefore correctly granted summary judgment in favor of Dr. Sanders on this theory.
B. Complete Denial of Care
Next, Ms. Johnson argues a reasonable jury could find that Defendants effectively denied her any care for gender dysphoria, thereby displaying deliberate indifference. Although our precedent establishes that
It is well settled that “doing nothing in the face of serious medical needs” runs afoul of the
In Lamb, we identified four currently available modes of treatment for gender dysphoria: changes in gender expression and role, hormone therapy to make the body feminine or masculine, surgery to change primary or secondary sex characteristics, and psychotherapy. 899 F.3d at 1161. Ms. Johnson argues that “a reasonable jury could conclude that [she] did not receive any of” these four forms of treatment. Appellant‘s Suppl. Br. at 30.6
The district court concluded that Ms. Johnson in fact received medical care:
The medical treatment that was provided to Plaintiff was different from what she wanted. While she may have benefitted from participating in counseling and other mental health services while housed at DCF, she refused and waived receipt of medical services, therеby limiting her options for treatment of her documented personality disorder. Plaintiff was, however, periodically seen by the facility psychiatrist, the facility‘s nurse practitioner, and other member [sic] of the facility‘s nursing and mental health staff.
ROA Vol. II at 448.
As Ms. Johnson correctly notes, the district court‘s reliance on her waiver of mental
But while we reject the waiver theory, we nevertheless conclude that this record is devoid of facts to suggest that Defendants denied or were otherwise unwilling to provide Ms. Johnson any gender affirming care.
The record evinces that Ms. Johnson frequently requested one form of gender affirming care—HRT. See ROA Vol. II at 352 (“Reinstate my hormone therapy which has been discontinued . . . .“); id. at 354 (“Reinstate my hormone therapy . . . .“); id. at 357 (“I need to speak with Dr. Sanders pertaining to my hormone therapy issues.“); id. at 374 (“I am requesting to ‘meet’ with Dr. Sanders to discuss treatment options about my HRT . . . .“); ROA Vol. I at 352 (“Reinstate, renew, my HRT . . . .“); id. at 356 (“Reinstate my estradiol 2mg and spironolactone 50 mg . . . .“). But the denial of HRT reinstatement, without more, is not sufficient to prevail under a complete denial of care theory because a convictеd prisoner is not constitutionally entitled to their preferred treatment, and a prisoner‘s disagreement with a course of treatment is insufficient to establish a constitutional violation. See Perkins, 165 F.3d at 811.
Seemingly recognizing this obstacle, Ms. Johnson points to two requests that did not explicitly seek reinstatement of her HRT. On September 16, 2018, she requested “to speak with [Victoria] Shepherd,” a mental health specialist at DCF. ROA Vol. II at 359. The next day, Ms. Shepherd entered a note on the request reflecting that she met with Ms. Johnson that day. Id. This document contains no other information regarding the substance of that meeting, much less that Ms. Johnson had requested non-HRT forms of treatment for her gender dysphoria but was denied the same. Neither does Ms. Johnson provide that information by declaration. The most that can be said of this record evidence, then, is that when Ms. Johnson requested to speak with a mental health specialist, that request was honored.
Next, Ms. Johnson points to her May 2, 2019, request “to speak with the QMHP (Qualified Mental Health Professional) about my gender dysphoria diagnosis.” Id. at 373. DCF staff referred that request to mental health personnel, and the record is devoid of any indication that either of the named Defendants denied Ms. Johnson the opportunity to meet with a QMHP.
In short, this record does not contain facts sufficient to support a reasonable jury‘s conclusion that Ms. Johnson was denied any gender affirming care. And even if the record established that both of the above requests to meet with mental health specialists were in fact rebuffed, Ms. Johnson‘s complete denial of care theory could not succeed against these Defendants since there is no record evidence connecting the action or inaction of Dr. Sanders or Nurse Larimer to these requests for mental health services provided
C. Gatekeeping
Finally, Ms. Johnson asserts that a jury could determine that by failing to arrange for a gender dysphoria evaluation by someone other than Dr. Jones, Defendants acted with deliberate indifference. She argues that it should have been “obvious” to Defendants that the Jones Report‘s rejection of gender dysphoria “was unsupported by the conclusions and analysis on the face of” the report, and further that the report “should have prompted Defendants to question [Dr. Jones‘s] partiality—and therefore capability,” such that Defendants should have allowed Ms. Johnson “to see a specialist, or arrang[e] an assessment from another QM[HP].”7 Appellant‘s Suppl. Br. at 36–37, 39.
The subjective component of deliberate indifference may be satisfied under a “gatekeeper” theory—that is, when a defendant “prevents an inmate from receiving treatment or denies access to someone capable of evaluating the inmate‘s nеed for treatment.” Lucas, 58 F.4th at 1137; Sealock v. Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000) (recognizing gatekeeping liability for denial of “access to medical personnel capable of evaluating the need for treatment“). Our precedent “illustrate[s] that when a jail official knows, or ‘refuse[s] to verify underlying facts that he strongly suspected to be true, or decline[s] to confirm inferences of risk that he strongly suspected to exist’ about an inmate‘s serious medical need, the official‘s failure to obtain medical assistance constitutes deliberate indifference.” Paugh, 47 F.4th at 1159 (quoting Farmer, 511 U.S. at 843 n.8). When this subjective element is present, the “inquiry under a gatekeeper theory is . . . whether [defendants] fulfilled their sole obligation to refer or otherwise afford access to medical personnel capable of evaluating a patient‘s treatment needs.” Lucas, 58 F.4th at 1139.
Defendants maintain that because they are “medical professional[s],” they are not, as a matter of law, gatekeepers charged with facilitating care for Ms. Johnson. Appellees’ Suppl. Br. at 20–21. This is incorrect. That a defendant provides medical care does not foreclose gatekeeping liability: medical professionals “can occupy both positions of gatekeeper and provider simultaneously.” Lucas, 58 F.4th at 1143 n.5. Thus, gatekeeping liability
Although it is not the case that Defendants are relieved of any obligation to facilitate care for their patients when the required care is outside their expertise or authority, to establish deliberate indifference Ms. Johnson must show that Defendants knew or strongly suspected that a need for such care existed. Ms. Johnson asserts that the Jones Report itself “should have” caused Defendants to doubt its diagnostic conclusions. Appellant‘s Supрl. Br. at 36, 37. But this record is devoid of any facts on which a jury could rest a determination that Defendants in fact knew or strongly suspected that Dr. Jones‘s diagnosis was wrong. At bottom, Ms. Johnson seeks to impose on Defendants a duty of care requiring them to scrutinize a diagnosis rendered in the ordinary course by a professional in a different medical discipline. She asks for more than the deliberate indifference standard requires.
To comply with their constitutional obligations, Defendants were not required to search for flaws in Dr. Jones‘s diagnosis, even if that diagnosis was made negligently and even if Defendants acted with negligence by failing to discern defects therein. Rather, to create a triable issue of fact as to Defendants’ state of mind, Ms. Johnson was, at minimum, required to adduce record evidence on which a jury could find that Defendants “strongly suspected” that Dr. Jones had wrongly diagnosed her, and that a substantial risk to her health and safety thereforе existed. Farmer, 511 U.S. at 843 n.8 (“It is not enough merely to find that a reasonable person would have known, or that the defendant should have known . . . .“). Stated simply, Ms. Johnson cannot satisfy the subjective knowledge requirement by pointing to non-obvious problems that Defendants should have discerned in the Jones Report.
Neither are Ms. Johnson‘s diagnosis-related grievances sufficient to establish the subjective component. The record does not disclose that Dr. Sanders was involved in the resolution of any of Ms. Johnson‘s submissions that raised concerns about Dr. Jones‘s diagnosis. But construing the grievance record in the light most favorable to Ms. Johnson, the following information was known to Nurse Larimer because it was included on submissions from Ms. Johnson he reviewed:
- that Ms. Johnson believed Dr. Jones did not use “the correct criteria of gender dysphoria,” ROA Vol. I at 346;9
- that Ms. Johnson believed Dr. Jones to be an “inexperienced psychologist[],” and that such psychologists “often misdiagnose gender
dysphoria for a ‘psychiatric disorder,‘” ROA Vol. II at 368; - that Ms. Johnson possessed “documentation” of “another evaluation (prior to [her] incarceration)” that shows that she did “meet the criteria for gender dysphoria,” id.
Notably, nothing in the relevant grievance history would have alerted Nurse Larimer to the possibility of bias on the part of Dr. Jones. Instead, at most, these materials alerted Nurse Larimer to Ms. Johnson‘s and another psychologist‘s disagreement with Dr. Jones‘s diagnostic evaluation. But “a prisoner who merely disagrees with a diagnosis or a prescribed course of treatment does not state a constitutional violation.” Perkins, 165 F.3d at 811; see Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014) (“Disagreement between a prisoner and his doctor, or even between two medical professionals, about the proper course of treatment generally is insufficient, by itself, to establish an
In sum, on this record, no reasonable jury could find that Defendants acted with deliberate indifference by declining to facilitate a second gender dysphoria evaluation.
IV. CONCLUSION
For the reasons stated, we AFFIRM the judgment of the district court.
Notes
Ms. Johnson notes that inmates have repeatedly sued Dr. Jones and others based on Dr. Jones‘s rejection of gender dysphoria diagnoses in favor of personality disorders. See Hardeman v. Smash, No. 21-7018, 2022 WL 470741, at *1 (10th Cir. Feb. 16, 2022) (unpublished) (alleging that Dr. Jones rejected a “suspected” gender dysphoria diagnosis in favor of “Histrionic Personality Disorder“); Porter v. Crow, No. 18-CV-0472-JED-FHM, 2020 WL 620284, at *3–4 (N.D. Okla. Feb. 10, 2020) (alleging that Dr. Jones rejected an affirmative gender dysphoria diagnosis made by prior ODOC medical doctor in favor of “schizotypal personality disorder,” in part because Dr. Jones thought inmate was “masquerading as a womаn” given that inmate‘s “choice of careers and interests” were “typically male dominated“); see also Halliwell v. Allbauch, No. CIV-18-1152-D, 2019 WL 1128761, at *2 (W.D. Okla. Mar. 12, 2019) (alleging that Dr. Jones instructed another doctor to change inmate‘s gender dysphoria diagnosis and to “not treat her for” gender dysphoria).
Although Ms. Johnson raises the possibility that Dr. Jones has a penchant for rejecting gender dysphoria diagnoses in favor of never-before-diagnosed personality disorders, there is nothing in this record to suggest that Dr. Sanders and Nurse Larimer were aware of Dr. Jones‘s practices. And because Ms. Johnson has not sued Dr. Jones in this litigation, whether Dr. Jones acted with deliberate indifference or negligence in her diagnosis of Ms. Johnson is beyond the scope of our review.