*1 65(d) that house foster chil- suant placement types Fed.R.Civ.P. shall be dren; by a neutral expert monitored monitor appointed by addition, Court. Sibling and Visita- v. Child-Parent jurisdic- continuing Court shall have implement develop tion. DCF shall and compliance tion to oversee with that or- adequate for visitation policies providing der. and children of those parents between removed into foster care and
parents
siblings one or more of whom has been care;
removed into foster Defendants develop implement policies, and
shall adequately provide siblings
which for
being placed together foster care and adoptive guardianship settings KOSILEK, Plaintiff, Appellee, Michelle permanency goals where those are v. achieved; SPENCER, Luis S. Commissioner of Planning. vi. and Case Service DCF Department the Massachusetts necessary shall take action to Correction, Defendant, Appellant. adequate timely plans case and case adequate for children and reviews No. 12-2194. timely plans parents. services for their Appeals, United States Court of vii. Quality DCF Assurance/Data. First Circuit. that it a quality shall ensure has assur- (“QA”) system ance consistent Dec. 2014. standards of the that is COA CWLA capable measuring quality of ser- provided
vices to children in DCF custo-
dy; Monitoring
viii. Contract and Per- Monitoring. DCF
formance-Based adequately
shall ensure that an staffed monitoring
and trained contract unit is within the
created state’s central office purposes overseeing manag- purchased agen- services of the
cy; develop implement DCF shall
performance-based contracting scheme private providers
with its foster care children; protection
ensure the
ix. Foster Care Maintenance Rates. pay shall determine and foster
DCF fully reimbursement
care rates
meet the elements set forth in 42 U.S.C. 675(4)(A);
section pro-
x. Monitoring/Enforcement. The pur-
visions Court order entered *5 McFarland, Division, Legal
Richard C. Correction, Department of with whom WThite, Nancy Special Ankers Assistant At- General, appellant. torney was on brief for Sulman, Joseph L. with whom David Sulman, Brody, Joseph Law Office of L. Cohen, Goldman, Frances S. Jeff Christina LLP, Chan, Bingham McCutchen appellee. were on brief for Beckwith, D. on brief for the Andrew Institute, Family amicus Massachusetts support appellant. curiae in of Lable, A. McCaughey, Daniel V. Cori LLP, Gray on Ropes G. Ali and Kristin & Association brief for World Professional question Health, precisely, we are faced with Mental Health Transgender particular choice of a America, Community Health whether the DOC’s Callen-Lorde Health, constitutionally GLMA: inade- Center, treatment is Whitman-Walker medical Advancing LGBT Professionals the district court acts quate, Health such Center, amici curiae injunction Equality, and Mazzoni to issue an power within its appellee. of support of an alternative treat- requiring provision give rise ment —a treatment which would Block, Segal, R. LGBT Matthew Joshua safety and pris- to new related concerns Fathi, National Pris- Project, and David C. security. on brief for American Civil Project, on on Union, Liberties American Civil Liberties commu- carefully considering After Massachusetts, Legal Aid Soci- Union care, adequa- nity standard of Legal Prison Assistance Pro- ety, Harvard treatment, cy and the valid provided ject, Legal Services of New Prisoners’ DOC, security concerns articulated York, Legal Prisoners’ Services of that the district court erred we conclude Massachusetts, in support amici curiae provided and that the care to Kosilek appellee. the DOC does not violate Klein, H. Levi and Bennett Jennifer Amendment. therefore reverse the We Gay & De- brief for & Lesbian Advocates relief, injunctive grant district court’s fenders, Human EqualityMaine, Rights remand with instructions to dis- and we MassEquality, Massachusetts Campaign, miss the case. Coalition, Transgender Political National Transgender Equality, National Center for Background I. Force, Transgen- Gay & Lesbian Task more litigation spanned This has now sup- amici curiae in Hampshire, der New twenty years produced than several port appellee. opinions significant length. See LYNCH, Judge, Before Chief (D.Mass. F.Supp.2d v. Spencer, *6 HOWARD, TORRUELLA, THOMPSON (“Kosilek 2012) ”); Maloney, II Kosilek v. KAYATTA, Judges. Circuit (D.Mass.2002) (“Kosilek F.Supp.2d 156 ”). record, Opinion expansive En Banc I In of the light we only necessary to recite here the facts TORRUELLA, Judge. Circuit clarify appeal. the issues on important case involves issues that This Eighth Amendment to the arise under A. Michelle Kosilek are asked to deter- U.S. Constitution. We in in 1949 as Rob- mine whether the district court erred Michelle Kosilek—born anatomically pris- ert an male concluding Depart- that the Massachusetts Kosilek—is (“DOC”) in suffers from ment of Correction has violated oner her mid-sixties who (“GID”)1 identity disorder gender the Cruel and Unusual Punishment Clause by a female. In 1992 Kosilek Eighth providing Amendment self-identifies as first-degree was convicted of murder and allegedly inadequate pris- medical care to (“Kosilek”). imprisonment More sentenced to a term of life oner Michelle Kosilek (last "gender identity 20dysphoria% 20sheet.pdf visit- 1. The term disorder” has 20fact% 3, 2014). "gender consistency recently replaced the term ed June To maintain been with litigation dysphoria” community. prior with related and evidence in in the medical See record, Ass'n, Psychiatric Dysphoria, we continue to the term Am. Gender use http://www.dsm5.org/documents/gender% opinion. in this "GID” GID, strangulation required additional treatment for her parole for the without then-wife, McCaul, Cheryl whose and that the need to develop DOC would of her in the backseat implement improved found abandoned an treatment body was mall. shopping plan. at a local See The court warned that a failure to of a vehicle Kosilek, future, provide v. 428 Mass. treatment in the now that Commonwealth (1996). awaiting While on notice of the potential N.E.2d 808 DOC was for murder, Kosilek twice harm if only “supportive therapy” pro- trial for McCaul’s vided, Eighth to commit suicide. She also could amount to an Amend- attempted in string around her testicles once tied ment violation. self-castration, at but removed attempt treatment C. DOC offers painful. it string when became Since Kosilek has been housed MCI- responded by The DOC to Kosilek I Norfolk, in a medium male revamping policy its for GID treatment. Throughout twenty- Massachusetts. past, adopted poli- In the the DOC had duration of her incarceration at MCI-
year cy “freezing” prisoner’s treatment at Norfolk, attempted to Kosilek has prisoner level that had attained whatever harm herself. prior to incarceration. Hormonal treat- ment, for example, be available B. Kosilek I only prisoners pre- who had been Kosilek first the DOC al- sued prior scribed hormones to incarceration. provide its failure to direct leging af- place policy, of this “freeze-frame” for her GID was a violation of treatment adopted plan ter Kosilek I the DOC time, Amendment. At that prisoners that allowed to receive addition- only receiving “supportive Kosilek was beyond al the level of that re- therapy” cope with the caused distress prison, entering ceived before when such by initially sought her GID. Kosilek both medically required. care was Under this damages injunctive requiring relief plan, new medical recommendations would reassignment her sex DOC University be made of Massachu- (“SRS”), although her claim Program Health setts Correctional injunctive for relief survived to trial. (“UMass”), provider a health-services con- tracted the DOC. The DOC Commis- The district court issued a decision Director of Health sioner and 2002, in which it concluded assessing responsible Services were proven had the existence of a serious med- any change treatment would whether that her then- ical need and had shown *7 security concerns. create increased plan inadequate. current Treatment was however, concluded, The court that the Seil, by Dr. David Kosilek was evaluated provide was unaware that a failure to specialist, pre- a who gender-identity might additional treatment to Kosilek re- of treatment to alleviate scribfed course Moreover, in harm. it held sult serious referred to as the mental distress-—often the DOC’s failure to treat- In “dysphoria” with her GID. —associated rooted, in in part, ment was at least “sin- recommendations, in line with Dr. Seil’s result, the cere concerns.” As began providing Kosilek 2003 the DOC not in viola- court ruled the DOC was significant ameliorative treatment with tion of the Amendment. mental directly addressing the aimed DOC, by In addition to distress caused GID. Despite finding for the the district treatment, health she continued mental opinion court’s made clear female, facility fo- way Center is a gender-appropriate Boston-based provided was lesbian, bisexual, gay, effects, serving cused on and electro- clothing personal contrast, transgender community. re- permanently lysis performed was the DOC’s Director of Mental Health began hair.2 Kosilek also move her facial Services, Gregory Abuse Substance treatments recom- a course of hormonal Hughes (“Hughes”), suggested consulting endocrinologist. These by an mended (“Osborne”), Cynthia gen- with Osborne develop- treatments resulted “breast identity employed at specialist der All shrinkage of her testicles.” ment and of Medicine who Hopkins Johns School continue to be of the treatments described depart- with experience working had other present day. offered to Kosilek to regarding ments of correction GID treat- ment. D. of SRS Consideration Harry Benjamin Hughes expressed using concern with
In line with the Stan- (the Fenway per- because of “the Center of “Standards of Care” dards Care to come ception approach that their was Standards”),3 “the Dr. Seil recommended globally out with recommendations that that Kosilek be considered for SRS after It panoply endorsed a full of treatments.” Accord- year one of hormonal treatment.4 contrast, Osborne, thought was began ingly, process in 2004 the DOC “may objective do more evaluations.” Dr. finding appropriate professional noted, however, Appelbaum that the Fen- for, eligibility and the evaluate Kosilek’s was, way approach Center’s to his knowl- of, necessity SRS. At the DOC’s Executive edge, probably “more the norm than the Meetings there was some debate re- Staff exception.” recognized The DOC also should be hired to conduct garding who having provider a Boston-based treatment evaluation. The UMass Mental this might easily process more facilitate the Director, Program Health Dr. Kenneth Kosilek’s evaluation. Appelbaum, suggested that the DOC con- Fenway Community sult with the Health Fenway Center was retained (the Center”). DOC, “Fenway by Kevin Center The Fen- and Kosilek was evaluated ("WPATH”), delayed 2. Facial hair removal was because of Health Standards Care for Transsexual, difficulty finding willing Transgender, provider that was Health and Gen- (2011). der-Nonconforming perform People, these services Kosilek. Version pro- minutes of the DOC’s Executive Staff Meet- The Standards of "are intended to Care ings they proactively sought show that out vide directions the treatment" of flexible GID, "[(Individual providers throughout period professionals service and state that delay, electrolysis completed organized programs may modify” in No- requirements response vember 2004. Standards' to "a patient’s unique experi- ... “an situation” or professional’s evolving [treatment enced 3. The Standards of Care are a set of treatment methodology].” Standards of Care at 1-2 Harry Benja- recommendations issued added). (emphasis Dysphoria min International Gender Associa- provide guidance tion that on the treatment of plan aligns with GID. Relevant II with the Stan- individuals to Kosilek is 4.This sequence the sixth version of the Standards of Care. See dards of Care’s triadic for GID Harry Benjamin Dysphoria sequence begins diagno- Int’l Gender treatment. This *8 Ass'n, Identity provision therapy, progresses Standards Care sis and the of to Gender of Disorders, treatments, (2001) ("Standards and culminates with Sixth Version endocrine Care”). A at least one full seventh version of the Standards of consideration of SRS after 2011, published adopts year living experience” in the Care was the a "real life Harry Benjamin preferred gender Many with Association's new name. role. individuals Transgender complete sequence. the full See World Professional Ass'n for GID choose not to Kaufman, M.D., Psy.D., Fenway Report by and Randi The was received Kapila, the by DOC and reviewed Dr. Kapila Appelbaum interview. Drs. ninety-minute in a colleague, his UMass Dr. Arthur also reviewed Kosilek’s med- Brewer. and Kaufman 2005, 24, they UMass doctors informed the February DOC ical On records. they that found no clear contraindications that Kosilek report recommending issued SRS, (the they to but noted were “un- “Fenway Report”). receive SRS any aware of other case which an inmate acknowledged Kosilek’s Fenway Report has undergone reassignment surgery sex response provid- to the treatment positive while incarcerated.” by the DOC. ed joy being through around feminized Her considering After the information from body facial hair therapy, UMass, hormone the DOC decided have Osborne access, removal, ability and her to have peer Fenway conduct a review of the Re- in, Osborne, and to dress feminine attire and port. In a letter DOC make-up palpable. responses is These requesting stated that it was her services suggest being further able to ex- because “[t]he treatment of Gender Identi- helpful ty as female has been Disorder within a press herself correctional environ- ment alleviating gender,dysphoria.... complicated her is a issue and one that Department very seriously. takes increasingly clear that her femi- We [I]t expertise you are aware of the substantial presentation nine hás been beneficial to possess hope you in this area can psychologically. her provide determining us with assistance in Nonetheless, emphasized it that Kosi- also appropriate April treatment.”5 On by significantly lek remained distressed copies sent of all Osborne “having genitalia, male as well as not hav- previous medical evaluations Kosilek. genitalia.” light female of this con- distress, 28, 2005, tinuing Fenway April Center doc- On the DOC Director of Services, (“Martin”), likely that “it that Health Susan Martin quite tors stated UMass, if attempt again stating Michelle will suicide she is wrote her concern' anatomy.” The had not the lack of change “address[ed] not able to her UMass detail, clarity specific concluded that Kosilek had ful- recommenda- report also ly through Fenway tions in the evaluation done progressed Standards Clinic,” sequence, “ap- triadic and that she and had failed to inde- Care’s SRS, appro- as to the pear[ed] ready” pendent to be for SRS. recommendation believed, likely priateness surgery. “allow She also asked for doctors would most information, symp- specific logistical including Michelle to have full relief from the might provide the sur- gender dysphoria” quite toms of and would list doctors who gery, procedures per- “increase her chance for survival” what would be possibly formed, decreasing potential recovery for fu- and what time could be greatly expected. ture suicidal ideation. women,'' Virgi- responded "indepen- previously the center
5. Osborne worked with the Departments [Fenway nia and Wisconsin of Correction psychological dent of other disorders regarding prisoners their treatment of history, experts] don't consider criminal GID. It is unclear from the record whether homicide, January brutality.” On [or] Fenway previously developed Center had Fenway 2005—before the Center released its plans penological for GID within a report Director of Health Ser- DOC's —the "expressed setting. When the DOC asked what consider- vices concern" about these omis- Fenway gave Center such ation the issues sions. history against as “criminal violence [and] *9 “[tjhere currently profes- no universal 10, 2005, Appelbaum Drs. May On consti- they regarding consensus what indicating that de- sional replied, Brewer necessity in tutes medical GID.” Fenway Center’s recommen- the ferred to they experts were not surgery, dation of of Care’s reference to the Standards procedure in the area of SRS—a Os- penological setting, in a application to from their contract excluded specifically that the Standards of Care borne noted They provid- the DOC. services to provide a criterion that candidates for SRS include to consid- surgeons list of preliminary ed a “satisfactory problems control of exhibit er, practice licensed to none of whom were abuse, sociopathy, psy- such as substance in Massachusetts. medicine suicidality.” that chosis and She believed inherently in conflict 20, 2005, requirement her was finished May On Osborne to incar- application Fenway Report. She with Standard’s peer review of persons, as she felt incarceration that her review was cerated began by making clear mastery a lack of over such anti- evaluating the re- indicated reading limited to Moreover, result, noted leanings. social Osborne As a she could ports of others. Kosilek, that non-incarcerated individuals often diagnose but she independently face external constraints in their choice of conclusion that Kosilek agreed with the determine, Still, disagreed treatments or as a result of GID. she suffered from other, experience,” a lack of their “real life with what she believed to be report personally and an non-invasive treatments are comprehensiveness preferable consequence, to SRS. In she possibility inclination to minimize the Namely, felt that it was unrealistic for inmates to conditions. Osborne comorbid no “that life previously expect [would] that Kosilek had highlighted gender to cross Personality with Antisocial constraints or obstacles diagnosed been Disorder, and that it was diagnosis preferences” “outside[] neither confirmed good practice” clinical for Fenway Report, nor denied bounds providers try expecta- care to meet this report that the included no indication in- pa- assessed for other tion. Given the isolation attendant Kosilek had been carceration, self-harming emphasized Osborne also thologies likely to lead be- lack expressed prisoners might havior. belief that often awareness Osborne individuals frequency threats of self-harm or suicide should the with which surgery, serve as a contraindication to and choose alternative treatments over SRS. that such threats were not a valid or clini- review, considering peer After Osborne’s justification surgery. cally acceptable again Martin reached out to the doctors In consequence, disagreed she with the 25, 2005, May expressed UMass. On she Fenway Center’s statements continuing Fenway concern with the Re- medically necessary as a means to port, highlighting peer that Osborne’s re- diminish the likelihood that Kosilek would questions view had raised at least three in the future. attempt suicide (1) regarding report’s thoroughness: why report omitted consideration of report highlighted Osborne’s also (2) comorbidities; why potential report the Standards of Care admit flexible test- application, rely psychological and noted that the Standards did not on formal interview; and diagnosis ing, only in-person but state that “the of GID invites (3) that she would variety therapeutic why of a Kosilek’s claims consideration provided if not complete likely one of which is the seek to end her life options, than justify, that with were seen to rather therapeutic emphasized triad.” She SRS *10 to, surgery. hormonal treatments should be allowed to a contraindication serve as that medically necessary continue this treat- expressed also dissatisfaction Martin by the ...” February 2005 evaluation ment. “the whether Fenway does not indicate Clinic Fenway Center doctors further dis- ne- surgery is a medical reassignment sex key step cussed their belief that a of the Kosilek” and “fails cessity for Michele [sic] sequence, triadic the “real-life experience,” of whether adequately address the issue in prison. pre- could occur This treatment to Kosilek provided current treatment requisite requires that an individual live symptoms relief of the provides sufficient preferred cross-gender full-time in their gender dysphoria.” year being for at prior role least one Appelbaum
A from Drs. and response eligible purpose deemed for SRS. The 2005. The doc- Brewer came June requirement pa- this is ensure that GID they experts were not tors made clear opportunity experience tients have an GID, they and that role, the treatment of cross-gender full measure of life in a Fenway treat- deferred to the Center’s including scrutiny may arise social Referring to the ment recommendation. among professional counterparts and preferred treat- Prison, differences between peers. Fenway doc- Center’s Fenway and plans surmised, ment Center might tors be considered a Osborne, the doctors reminded Martin that stringent” experience, “more real-life be- report emphasized had Osborne’s prisoner’s gender presentation cause a upon research which empirical “dearth subject monitoring by would be to full-time for to base treatment decisions” GID and other inmates. The prison personnel highlighted “professional had the lack of report by reiterating concluded the Fen- the “medical necessi- regarding consensus” way Center’s recommendation that Kosilek ty” of SRS. recognized receive SRS. The doctors ... performing procedure “such a Fenway follow-up issued a Center safety,” bring up housing issues of but cri- report answering aimed at Osborne’s therapy emphasized that “hormone tique of its initial recommendation. are the clinical treatments [SRS] report, Kapila Drs. and Kaufmann noted found to be effective for GID.” among that suicidal ideation was common GID, that it suffering individuals from Security Report E. The DOC’s provision often decreased with the of care. Therefore, 25, 2005, April that Kosilek the district court is- the likelihood On the DOC requiring would become suicidal if denied sued order safety was, doctors, any potential conduct a review of to the not a contraindication arising from the eligibility, symp- to her but instead was a concerns month, the provision of SRS. In the next provision tom that could be alleviated security con- worked to formalize its disagreed SRS. The doctors also Os- DOC eventually sig- report, into a which it borne’s belief that incarceration was a cerns 10, 2005. noting submitted to the court on June surgery, nificant contraindication to by the minutes of the specifically As made clear the Standards Care however, receiving meetings, staff these secu- “[pjersons state that who are DOC’s topic prior of discussion rity should continue to issues were [GID] treatment Previously, on Janu- ... after to the court’s order. appropriate receive 5, 2005, meeting attendees had example, ary those who are incarceration. For prior if Kosilek’s violent cross-sex discussed how and receiving psychotherapy and/or infeasibility of housing their the stated impact her wife should Given against acts general population of either April Kosilek plan. and treatment On evaluation *11 MCI-Norfolk, MCI-Framingham or 20, 2005, parties potential discussed housing in a report segregated considered that would arise should security concerns concern, expressed It protected ward. housed, post-surgery, MCI- Kosilek be however, im- possible about the deleterious only female Framingham, Massachusetts’ mental health caused pact on Kosilek’s meeting, per- that prison. During any housing required long- solution they prepared were to sonnel noted that report The also noted that term isolation. provide general an evaluation of climate ability it within to was not the DOC’s by the security implicated and concerns prisoners ward for with special create provision surgery. of GID, given prisoners present these 19, 2005, May On DOC Commissioner histories, criminal se- significant range of (“Dennehy”) convened Dennehy Kathleen curity ratings, and treatment needs that of meeting Superintendent with the co-housing. are antithetical to MCI-Norfolk, Spencer (“Spencer”), Luis 10, 2005, citing both its internal On June Superintendent MCI-Framing- and the of safety security review of and and Os- (“Bissonnette”), ham, Lynne Bissonnette regarding reported borne’s concerns legal as well as the DOC’s counsel. The SRS, appropriateness of the DOC in- formally purpose meeting of this was to formed the district court that it had chosen previously concerns discuss to continue Kosilek’s current ameliorative expressed by superintendents both treatment, but not to her with Dennehy. It phone conversations with SRS. opportunity begin prepara- was also an to report requested by tion of the the district II F. Kosilek court. 30, 2006, May Trial commenced on with what would the first of three rounds of be report mainly on issues of focused testimony. clarity For the sake of and safety security surrounding Kosilek’s concision, testimony we summarize this post-operative housing. Dennehy con- topically, temporally. rather than We be- veyed regarding housing concern Kosilek gin regarding with evidence the standard MCI-Norfolk, noting at that approximate- of of care for treatment GID. ly twenty-five percent of male offenders system the Massachusetts are clas- Testimony 1. related to medical ne- concluding sified as sex offenders and cessity clearly target “Kosilek would be a for as- testimony a. Initial prison.” sault and victimization in a male report expressed also concerns testify expert First in 2006 was an in- housing MCI-Framingham, Kosilek, Brown, George witness for Dr. cells, cluding single-bed the absence of previously who had evaluated Kosilek in cells, that all such inmates had to share 2001 and was an author of the Standards possibility presence and the that Kosilek’s testifying, Prior to Dr. Brown Care. might among mental exacerbate distress report assessing issued a written Kosilek’s significant portion MCI-Framing- evaluating readiness for her population previously expe- physical presentation, ham’s had current mental and compared rienced domestic abuse and trauma at the with 2001. Dr. Brown noted consistently presented hands of that Kosilek as fe- partners. male “[ajccess that, Dr. if makeup Brown further testified and that male removal, granted surgery, he hair believed Kosilek’s undergarments, laser female feelings “hopelessness intensify,” will ... have treatments along with hormonal likely attempt she would suicide. significantly reinforce all seemed' conclusion, reaching Dr. Brown expression [Ko- the outward consolidate emphasized parts that “other of the treat- identity as female.” Other gender silek’s] hormones, removal, plan [e.g., ment hair of treatment were also de- positive effects ... provision clothing] and the female scribed: way all contribute in their own to level of have resulted in Hormonal treatments *12 Nonetheless, that, improvement.” he felt my as- growth breast since last obvious SRS, hope receiving if Kosilek lost of her sessment, body in upper decrease plan stop current would not size, in hip changes increase in strength, deterioration of her mental state and the hair, body texture of skin amount and possible reemergence of suicidal ideation. volume changes, texture testicular de- Fenway Dr. Kaufman from the Center crease, large sponta- and a reduction testified, reiterating Fenway also that the Psychologically, neous erections.... appropriate Center believed SRS be effects of these combined treatments medically necessary step and in Kosilek’s depres- have ... resolution of [included] treatment. She further stated her belief sion, suicidality resolution of and suicide that, given surgery, if not Kosilek would improved mood gestures attempts, and present significant risk of suicide: “if irritability, anxiety, with reduction surgery, she’s not able to have I think that depression.... and helpless at hopeless she’ll be and feel observations, Dr. Based on his Brown con- point really nothing will have else to SRS, eligible cluded that Kosilek was for live for.” all having met of the readiness criteria. testify Next was Mark Burrows court, testimony Before the Dr. Brown’s (“Burrows”), who had been Kosilek’s treat- of female emphasized provision ing psychiatrist approximately five effects, removal, clothing and hair and hor- years. Burrows testified to Kosilek’s in a lessening mones had resulted of “the SRS, strong feelings desire for and to her severity dysphoria.” of Ac- [Kosilek’s] hope completing with the for- associated cording clearly to Dr. “[s]he Brown gender presentation. malization of her anxious, irrita- depressed, less less less denying surgery Burrows also stated that Despite ble.... was not suicidal....” likely negative impact She would have a Dr. significant improvements, these Brown Kosilek’s mental health. He believed that “slightly” probable that he to be an it was “more than not” testified believed SRS appropriate “medical[ly] necessary that a denial of the would result attempting commit suicide. component” of Kosilek’s treatment. He Kosilek that, if spoke related instances in which incarcerated Burrows also about his belief SRS, persons complete given who could not the triadic Kosilek should not continue to MCI-Norfolk, in- sequence6 nega- exhibited an increase in reside at as “the risks including possibly being in her assaulted are symptoms, resurgence tive volved self-harming behavior. obvious.” ment, steps sequence, fully complet- and culminate—after at least a one-
6. The of this if ed, year-long experience con- progress diagnosis and thera- real-life from GID —with treatment, through peutic endocrine treat- sideration of SRS. of treat- that the current course was also indicated of UMass Appelbaum Dr. medically by the DOC was provided testi- ment for Kosilek. He a witness called as explained that the Fenway adequate. Dr. Schmidt trust in the fied as to UMass’s recommendations, dysphoria associated with GID severity to his be- Center’s wane,” patients feeling with may out “wax and sought not have that the DOC need lief times, hopeless gener- but given depressed or Fenway Report, peer review of depres- to alleviate these ally being in the able expertise Fenway Center’s appropriate psycho- symptoms sive with treatment of GID. interventions. He therapy and medical expressed next. She Kosilek testified measures, in combination these felt SRS, and she her desire for depth treatment, course of with Kosilek’s current experi- continue to that she would stated safely maintain allow her to live gender her anguish regarding ence mental contentment. a level of long genitalia. she had male identity so cross-examination, SRS, Dr. Schmidt was said that On If not provided rejection regarding alleged his existing questioned to continue not want she “would of Care. Dr. Schmidt might instead Standards male]” an anatomical [as *13 responded that he found the Standards of disagreed commit suicide. She attempt to that he “very patients” short useful for suggestion with the that treatment Care commonly requested patients that familiar- adequately relieve her men- of SRS could distress, ize with these Standards when stating problem tal that themselves “[t]he for if they began what to be to seek care SRS. Asked my genitals. That’s needs eligi- for feeling requirements testified as to he had stricter SRS fixed.” Kosilek also Care, in bility in than those the Standards of discomfort the all-male environment emphasized Dr. that he neither having strong a desire Schmidt MCI-Norfolk MCI-Framingham. speak[s] against for nor ... to be transferred to “advocate[s] cross-gender the decisions for the hor- She felt that the inmates MCI-Fram- Rather, accepting eventually surgery.” and wel- mones or for ingham would be more than those at he believes such decisions are best made coming of her MCI-Norfolk. by patient, personal based on their testimony Dr. The DOC offered from belief, In line with this needs and desires. Schmidt, psychiatrist a licensed Chester specif- Dr. Schmidt stated that he does not Hop- and Associate Director of the Johns SRS, ically patient’s at a recommend but Dr. ex- kins School of Medicine. Schmidt request he will release medical files and pressed his that Kosilek had under- belief, indicating patient a letter that a send gone adaptation” through an “excellent ready to their chosen SRS hormones, removal, treatment with hair provider. psychotherapy, provision and the of female Dr. further testified that he garb. These treatments had alleviated the Schmidt “guide- as severity of her mental distress and allowed viewed the Standards Care however, that significantly explained, Kosilek to consolidate her lines.” He country many people are gender identity. Dr. Schmidt acknowl- “[t]here that, SRS, disagree if with those standards who are edged provided Kosilek’s who likely in- involved in the field.” Because [GID] level of mental distress would crease, expressed attempts disagreement, at self- this Dr. Schmidt depression whole, however, refer to the Standards of harm he hesitation to possible. On SRS, Care, or the recommendation for positive adaptation believed that her identity medically necessary. emphasized He gender the consolidation of her report regarding treat- of alternative methods and issue whether existence accepted proposed within the medical treatment Dr. Schmidt was an plans ment adequate whether method of community. questioned treating He also Kosilek’s of a In requirement report of Care’s GID. this to the the Standards —submitted experience prison, September could occur court on Ap- real-life 2006—Drs. re- experience that the real-life opining pelbaum they and Brewer made clear that range of social and vocational quired “worked with and relied Dr. upon Kapila penologi- unavailable within a experiences pre- and Dr. Kaufman” who “assisted] setting. cal pare response.” report stated in- UMass doctors “have been next, reiterating her Osborne testified Kapila formed Dr. Kaufman and Dr. diagnosis, agreement with Kosilek’s GID testimony that ... trial ... confirms’their medically disagreeing but SRS was opinion that Michelle Kosilek has ‘seri- In necessary treatment. reference to the ous medical need’ because there is a ‘sub- Care, Osborne testified that Standards stantial harm if risk serious it is not fully agreed that was an effective she SRS ” conclusion, adequately treated.’ appropriate treatment for GID. She report Fenway reiterated Center however, emphasized, that she did not' proposed believed Dr. Schmidt’s treatment medically necessary light view SRS as care, plan provide adequate would not of “the whole continuum from noninvasive UMass endorsed conclusion. options to invasive” treatment available Regarding Kosilek individuals with GID.
personally, Osborne indicated she be- court-appointed expert c. plan lieved Kosilek’s current *14 At the conclusion of the first round of allowing in highly had been effective Kosi- testimony, the district court decided to not “hopeful, euphoric, lek to feel and de- in appoint independent expert an to assist pressed” gender identity. about her Os- constituted the medical determining what borne, her, again Dr. like Schmidt before standard of treatment for GID. On Octo- expressed skepticism as to whether a real- 31, 2006, parties’ input, ber with the experience jail, given life could occur in Levine, Dr. Stephen district court selected necessarily single-sex that a environment practitioner at the Center for Marital of social and human inter- limited the sorts in and a clinical and Sexual Health Ohio that not agreed actions available. Osborne professor psychiatry of at Case Western might give Kosilek with providing SRS University School of Medicine. Reserve ideation, noted possible rise to suicidal but to author the fifth helped Dr. Levine had in significant expertise had that the DOC Care, of the Standards of and version exhibiting self-harming treating prisoners Benja- Harry as served Chairman felt that Kosilek’s current behavior. She Dysphoria min Asso- International Gender plan, conjunction protec- treatment with of ciation’s Standards Care Committee. ensuring per- tive measures aimed at her safety, appropriate was an and medi- sonal Dr. Le- appointment, A month after his cally acceptable response to Kosilek’s GID. report. report vine issued written roles that began by explaining the dual report
b. The UMass formerly Harry Benjamin WPATH — testimony, organization and the Following the close of initial Association Care-plays in its wrote the Standards court ordered UMass district review GID: provision of care to individuals with testimony experts all medical and to by many adequate psychi- considered supportive to those who be WPATH atrists, members, gen- gender team reassignment want sex themselves, if Kosilek were patients der strong alter- (SRS)_Skepticism community.... a citizen in the [T]here well tolerated. Such nate views are not community acceptable are a number of greeted known be views have been differing which derive from standards large from the numbers antipathy disorders, their assumptions about attend adults who nonprofessional causes, possible effective inter- organization’s biennial each [of] ventions. meetings.... prod- of Care are] that the treatment recognized [Standards He different effort to b'e bal-
uct of an enormous plans by advocated Dr. Schmidt and the anced, politically merit,” it is not a neutral but ... Fenway [had] Center “each aspires document. WPATH to be both Dr. Levine further well as limitations. . advocacy “do not rec- organization a scientific generally wrote that doctors group transgendered. for the These as- patients.... ommend treatment to GID limi- conflict. The pirations sometimes if patient’s], The decision is when and [the Care], how- [Standards tations of they still want it.” ever, primarily political. They not are Dr. on December Levine testified rigorous are caused the lack of re- 2006. He first reiterated his belief that in the field. search view, although preferred Dr. Schmidt’s emphasized “large Dr. further specialists, “pru- Levine some GID was within community’s exist in the medical gaps” professional dent standards.” He noted long-term knowledge regarding the effects significant that Kosilek had received relief other GID treatments in rela- of SRS and plan, on her current positive negative tion to its correlation many patients comfortably with GID live ideation. suicidal completing sequence. without the triadic already He believed that Kosilek had suc- possibility Dr. next discussed the Levine cessfully identity, gender consolidated her having experience a real-life genitalia such the removal of her male explained Fenway prison. He might dysphoria, relieve but it was not Center, stating experi- that a real-life *15 necessary to that complete consolidation. prison, ence could be had in “failed to offer variability difficulty He also indicated and a mild caveat that the real life test was forecasting depressive symptoms in and designed patients’ capacity to test the in self-harming patients. behavior GID community by function a female in the explained that he He believed mastering family, the demands of ... so- certainly express deep disappoint- would relationships, accomplish- cial educational if ment denied SRS—described as the sole ment, performance.” vocational [and] that coping current focus of her life—but experiences relationships, and Dr. Such might change mechanisms well her outlook noted, part Levine are not a of Kosilek’s come, years allowing in months and her daily prison. life in Dr. Levine’s final provision happily to live without conclusion was that: SRS. view, Dr. unpopular Schmidt’s however eyes in court then asked Dr. Levine uncompassionate
and The district GID, inquiry by pre- experts prudent some in is within to narrow the lens of his absolutely no ex- professional community suming standards. that there were and stopping surgery Treatment short of SRS would ternal contraindications to diagnosis being indeed had a real-life cated of GID on the that Kosilek had margins typical practice.” De- prison. pre- in Given these experience spite recognition, he Dr. Levine to testified he sumptions, the court asked necessary believed pru- it be SRS was for Kosilek. testify as to whether would still that, SRS, He felt if given Dr. she was not to not Kosilek with SRS. dent pru- significant there was risk that Kosilek acknowledged his belief Levine attempt not would suicide or- self-mutilation. generally professionals dent Although psy- Dr. Forstein believed that deny fully eligible to a individual. frustration, Still, chotherapy might “help with to declare Dr. Schmidt’s he hesitated harassment, depression,” and with medically unacceptable. He an- he approach would was uncertain whether Kosilek could ever provision swered that of SRS treatment, fully being incompletely “reconcile with surely prudent be a course of (cid:127) transitioned.” then stated that “I also believe it’s but Reassignment her prudent give not to Sex Testimony regarding safety 2. and Surgery again for lots of reasons.” He security concerns emphasized for the court that the treat- field, testimony evolving an ment GID was a. Initial reasonably could differ practitioners which 10, 2005, security In line with the June Dr. preferred in their treatment methods. report prepared by Commissioner Den- explained many Levine instances nehy, multiple officials testified re- patients cannot or do not want to receive garding safety security concerns SRS, physicians commonly prudent if likely that were to arise Kosilek was employ range of treatments to amelio- provided SRS. patients’ dysphoria. rate these testify First to at Spencer, who Superintendent time served as of MCI- testimony d. Additional rounds of Spencer began explaining Norfolk. witnesses were recalled for addi- Several layout general measures Kauf- testimony. Kapila tional Drs. explained He also that the MCI-Norfolk. appeared again man on behalf of Kosilek. had, far, successfully so been able Both reiterated their belief that Kosilek receipt of care to accommodate Kosilek’s that, given had a serious medical need and Spencer without incident. was unaware if high Kosilek’s risk of suicide denied any or incidents of harassment re- issues surgery, only adequaté was the treat- SRS in- growth lated to Kosilek’s breast plan. Appelbaum ment Dr. also testified creasingly feminine He stat- appearance.' again, Director. as did the UMass Medical ed, however, significant have he would Both UMass doctors reaffirmed their en- housing anatomically concerns female Fenway treat- dorsement of the Center’s MCI-Norfolk, prisoner pris- an all-male *16 ment recommendations. lack historical incidents Despite on. of Kosilek, emphasized he that “in- presented specific Kosilek also additional wit- to assaulted, get inmates have been testimony ness from Marshall For- mates do Dr. in stein, Psychiatry raped putting at ... a female a [a]nd Associate Professor of School, like previ- Harvard Medical who had correctional environment MCI-Nor- to If ously during high I. folk would be of concern me.” evaluated Kosilek Kosilek MCI-Norfolk, Spenc- report, a written in Kosilek remained at Dr. Forstein issued only er that he believed she would question which he noted that “the testified Special Manage- if in the compli- of treatment be safe housed prudent most form concerns, stating that she Unit, secure Bissonnette’s highly restricted ment general popu- Superintendents’ pro- from building separated deeply trusted both lation. security judgments regarding fessional respective facil- housing of their
Bissonnette, Superintendent MCI- Dennehy explained why also reli- ities. testified about the secu- Framingham, also compact if ance on an interstate to transfer would arise rity concerns she believed to the all-female problematic. Kosilek was transferred She em- Kosilek would be explained receiving after SRS. She prison prisoners that states take phasized other pri- not have MCI-Framingham does that basis, that no fully voluntary and on cells, and segregation save for the vate may willing or able to accommo- state be in general units. All women for Kosilek. request date a transfer cohabitate, required to population are ques- Dennehy Commissioner was also provide unable to would be surrounding negative press tioned about cell for Kosilek. She also single-occupancy to possible provision the DOC’s SRS presence that Kosilek’s could explained wa,s asked about Specifically, Kosilek. she in significant disruption create MCI- relationship with a state given professional that Kosi- her Framingham’s population, violently mur- vocally opposed surgery lek had been convicted senator who had wife, dering significant por- her and that a sponsored legislation deny provi- to its MCI-Framingham were tion of women at any sion. She was also asked about con- abuse. victims of domestic governor, then-lieutenant tact with the strong opponent pro- who was another acknowledged that there Bissonnette Dennehy viding prisoners. SRS to stated place designed help to procedures were upsetting negative to re- cope exposure press women she was aware experiences prison- with other traumatic ports political opposition surrounding ers, security maintained that these but request, that her Kosilek’s but decision Kosilek, if require concerns would only security to SRS was based on MCI-Framingham, be transferred concerns and had not influenced been Custody segregated housed Close public pressure. explained that she had
unit. Bissonnette Dennehy The district court recalled significant incarcerating hesitation about 18, 2006, ques- additional October ask Custody anyone long-term in Close regarding growing press tions amount of unit, negative given potential effects Dennehy coverage surrounding the case. long-term such segregation. n acknowledged sig- that she was aware of Dennehy also testified. Commissioner case, coverage nificant news of Kosilek’s security concerns aris- She described personally following story but denied housing as “obvi- cross-gender from there explained the media. She any experienced corrections officer. ous” were staff members within the DOC safety In line with her belief that the press inquiries trained to deal with post-operative concerns about generally that she received summar- clear, Dennehy housing were stated coverage from her staff. ies of news allowing she would not feel comfortable Dennehy forming Again, strongly denied if mandated the court—if SRS—even safety pro- any opinion about correctional identify adequate she could not method *17 public reports cedures based on media safely housing opera- Kosilek after her of Dennehy Spencer’s opinion. and tion. reiterated transfer, reiterated the Clarke concern Clarke
b. Commissioner any that interstate transfer would be com- tenure as DOC Dennehy ended her voluntary that a pletely receiving and state 30, 2007, and April on Commissioner Kosilek, might later decide to return at by filled position November 2007 housing which time the concerns would over, After Clarke took Harold Clarke. reemerge. famil- requested that he the district court court, a selected number ac- Testifying iarize himself with before the Clarke to was ordered transcripts. knowledged trial Clarke that he had received several of those tran- report, outraged politicians file a on basis letters from state that he believed scripts, indicating claiming provision whether that reasons to refuse legitimate taxpayers” had an “affront to the would be request for SRS. to citing budget Kosilek’s state concerns as reason deny surgery. argued The letters Kosilek report, approximately filed Clarke’s budget' should not that a strained state be order, court’s stat- month after the district legislators used to accommodate what the were based on ed that his conclusions procedure believed to be an “elective” of correctional more than three decades pro- be “unwise” to the DOC would by po- and were not influenced experience Clarke, however, explained vide it. expressed He pressure. litical or media letters, he had not answered these as he being threats of suicide regarding concern providing believed an answer would be prisoners for to receive used as means inappropriate given his role as DOC Com- or concessions from staff. wanted benefits being any He missioner. also denied practice prison it to be bad Finding in reach- way influenced cost concerns ac- give in to demands administrators safety ing regarding his conclusion suicide, by the threat of Clarke companied similarly security concerns. Clarke testi- the Massachusetts stated that he believed coverage that he was aware of media fied system significant had taken meas- he had regarding request, Kosilek’s but prepared it was to deal with ures to ensure news or heard personally not viewed the among prison popula- ideation its suicidal radio stories. considering In the issue tion. addition suicide, report reemphasized Clarke’s II G. security con- significant post-operative court an extensive He The district issued expressed predecessor. cerns his opin- 2012. This opinion September housing stated that Kosilek MCI-Nor- had a serious related ion concluded that Kosilek security folk created clear concerns on the court’s medical need and that-based mixed-gender prison populations, while prudent not a that Dr. Schmidt was housing MCI-Framingham Kosilek at belief only adequate way to professional-the pose significant risk of destabiliz- through More- environment, treat this need was SRS. given the number over, that the DOC’s the court determined prisoners who were victims do- women merely pre- security concerns were also stated his stated mestic violence. Clarke concluded that the DOC had unit to house GID textual and separate belief that a feasible, public its decision based on given pris- fact made prisoners was This, the court conclud- range political pressure. have a might oners with GID wide ed, un- to deliberate indifference security amounted classifications Stating its needs, Amendment. unsafe. ref- der the making cohabitation continue to the DOC would of an interstate belief possibility erence to the *18 82 violation, prisoner satisfy in the must both of
deny
adequate treatment
(1)
future,
granted
objective prong
court
an in-
an
that
prongs:
the district
two
need,
provide
junction requiring
requires proof
that the DOC
of a serious medical
(2)
subjective
prong
Kosilek with SRS.
mandates
showing
prison
administrators’ deliber
II. Discussion
Estelle,
to that
ate indifference
need. See
106,
(holding
The Amendment’s focus on within (internal .ishment that not all shortages quotation means sional standards” omitted)); failures in care exhibit the intent and marks and citations United (1st required to fall DeCologero, harmfulness within its am States v. 821 F.2d Cir.1987) Farmer, Moran, (same); bit. See 511 U.S. at Ferranti v. (1st Cir.1980) (reasoning Eighth (“[Ajllegations S.Ct. 1970 F.2d prohibition punishment simply disagreement Amendment’s reflect a [that] implies an act ... intentionality). appropriate done with course of treatment Therefore, prove alleging Amendment short of a constitutional vio- fall[ ]
83
lation.”)- Rather,
pro
may
indifference
the Constitution
also be exhibited
“
inadequate
disregard”
needs,
as to
“wanton
to a prisoner’s
care that is
‘so
scribes
”
(1st
Clarke,
449,
v.
v.
the conscience.’ Torraco Malo Battista
645 F.3d
453
shock
(1st Cir.1991) Cir.2011),
231,
akin
disregard
F.2d
235
such
must be
ney, 923
13).7
Sires,
recklessness, requiring
at
criminal
834 F.2d
conscious-
(quoting
“
harm,
‘impending
easily
ness of
preventa-
Second,
if
care is
even medical
” Watson,
ble.’
F.2d at
984
540.
satisfy
objective
inadequate as to
so
Eighth
evaluating
Amendment is not vio
When
medical care
prong,
indifference,
prison
security
administrators also ex
and deliberate
con
lated unless
in
prison
functioning
indifference to the
siderations inherent
of a
hibit deliberate
Estelle,
105-06,
penological
given sig
facts constitute violation of Review B. Standard may that be rights question is a of law Subsidiary assayed upon appeal.”). anew establishing an The test legal questions, such as whether an actor’s inadequate claim of Amendment Eighth conduct amounted to deliberate indiffer a multitude of encompasses care purposes Eighth ence for of the Amend elements both fac questions present that ment, are likewise reviewed de novo. of such “mixed legal. tual and Review Cf. States, 690, v. 517 Ornelas United U.S. exactitude; is of a variable questions” (1996) 699, 1657, 134 116 L.Ed.2d 911 S.Ct. defer question, more law-based a the less that, pur (holding for Fourth Amendment con entially we assess the district court’s poses, suspicion probable reasonable Howard, clusion. In Re Extradition of cause determinations should receive de (“The (1st Cir.1993) 1320, 996 F.2d 1328 review); appellate novo United States v. applicable standard of review to mixed Camacho, (1st Cir.2011) 718, 661 724 F.3d usually questions depends upon where (we review de novo district court’s sub they along degree-of-deference fall sidiary suspicion probable reasonable ”). continuum.... evaluating cause determinations in a mo legal The ultimate conclusion Bucci, tion to v. suppress); United States of whether administrators have vio (1st Cir.2009). 108, 115-17 582 F.3d Eighth lated the Amendment is reviewed See, e.g., Bryant, Thomas v. 614 Our court awards deference to de novo. Cir.2010) (“Whether (11th 1288, questions 1307 the district court's resolution of F.3d See, credibility. prison pure the record demonstrates that fact and issues of [the Moran, 15, ... sprayed agents e.g., with chemical DesRosiers v. 949 F.2d 19 er] (1st Cir.1991) psychological injuries (reviewing findings and that he suffered factual sprayings questions regarding adequacy from such are of fact. of care deferen Torraco, objectively at deprivations tially); (finding Whether these are 923 F.2d 234 objective ‘sufficiently satisfy culpability serious’ to issues of a deliberate (internal prong, question inquiry usually questions is a of law....” indifference are omitted)); jury). Morgan, citations Hallett v. 296 for We will reverse the district (9th Cir.2002) (“The 732, findings on factual questions F.3d 744 district court’s such DesRosiers, only for findings regarding court’s factual condi clear error. 949 F.2d (“[W]e assay findings at fact in a tions at the Prison are reviewed for clear 19 error.”). However, trial for clear find error. its conclusion bench We “ when we are left with ‘a Eighth facts do not demonstrate clear error belief, unyielding based on the question strong, Amendment violation is of law record,’ (citing Campbell judge whole of the that the made a we review de novo.” (9th O'Donnell, Wood, Cir.1994) 41, 662, v. 18 F.3d 681 mistake.” In re 728 F.3d (1st Cir.2013) (en banc))); Reeder, 754, (quoting 12 Islamic Inv. Co. Hickey v. F.3d 45 (8th Cir.1993) (Bah.) (In (“Whether conduct, Harper if Ltd. v. re 756 Gulf
85 21, The considerations set forth 545 F.3d Investigation), Jury Grand Ornelas, Cir.2008)). applied Bajakajian (1st may find clear also We Tool, equally are relevant commits an Leatherman court when the district error in real life is an fact-finding here. “Medical ‘need’ that affects its of law error Battista, term,” 72 elastic 645 F.3d at City Holyoke, Uno v. analysis. See Cir.1995) (“[T]he (1st “that substantive content from juris- take[s its] F.3d in which the stan particular ] not inhibit an the context[ clear error ‘does prudence of Ornelas, being of dards are assessed.” to correct errors appellate power court’s Similarly, 1657. law, may infect a so- U.S. S.Ct. including those fact, for what constitutes care in “legal law and or a rules” finding mixed called a violation of the Amendment “ac predicated finding of fact only through application”-a governing quire rule of content misunderstanding ” *21 appellate fact novo Thornburg Gingles, v. 478 which favors de review (quoting law.’ of, 106, 2752, clarify, 25 “to maintain control and to 30, 92 L.Ed.2d 106 S.Ct. U.S. 697, (1986))). principles.” id. at 116 legal See S.Ct. 1657. review tracks the This standard of for appellate framework Supreme Court’s Objective Prong: C. The Serious Medi- punishment of claims of excessive
review
cal Need
Eighth
under the
Amendment.
or fines
321,
To sustain a claim under
ob
Bajakajian,
v.
524 U.S.
United States
Amendment,
10,
2028,
jective prong
Eighth
141
of the
n.
118 S.Ct.
336-37 &
(1998).
a
the Kosilek must show that she has
serious
Bajakajian,
L.Ed.2d 314
received
medical need for which she has
Supreme
concluded
the exces
Court
Estelle,
inadequate treatment.
See
429
question properly
a fine was a
siveness of
Sires,
106,
285;
courts,
at
97
834 F.2d
by appellate
novo
U.S.
S.Ct.
considered de
(finding
Eighth
at 13
no
Amendment viola
applying
gross dispropor
“the standard of
“pres
to
prisoner
tion where the
failed
tionality articulated
Cruel
Un
[its]
any evidence of a serious medical
precedents.”
Punishments
entí]
usual
Clause
unmet”);
336,
gone
see also
applica
need that has
“[T]he
Id. at
Schmidt’s
THE
But
an area in
COURT:
is this
several erroneous determina-
was based on
think
you
prudent professionals
which
tions.
reasonably
can
differ as to what is at
minimally adequate
least
treatment for
that,
First,
pru-
unlike
the court ruled
this condition?
Dr. Schmidt
professionals,
dent
Yes, and do.
[DR. LEVINE]:
of Care
did not “follow”
Standards
Moreover,
put great
the district court
finding ignored
treatment of GID. This
his
weight on the fact that the Standards of
testimony
nuance in Dr. Schmidt’s
critical
require
patients
receive two let-
Care
severely
on a
and based its conclusion
prior
ters of recommendation
SRS.
expert
reading of Dr. Levine’s
strained
concluded, therefore,
“prudent
court
testimony.
professionals who treat
individuals suffer-
matter,
an initial
the Standards of
As
gqnder identity disorders
ing from severe
flexi-
significant
themselves admit of
Care
recommendation,”
write such letters of
applica-
bility
interpretation
in their
imprudent
it faulted Dr. Schmidt as
for his
state,
They
example,
that “[t]he
tion.
engage
practice.
in this
In so
failure to
of Care
Clinical Guide-
[a]re
Standards
on Dr. Levine’s
doing, the court relied
”
are
lines
“intended
flexi-
it
that a
testimony, which
believed stated
”
professionals
ble directions
to medical
prudent professional would not “[refuse]
plans.
crafting
Standards
write letters of recommendation.”
added).
(emphases
at 1
The Stan-
Care
however,
testimony,
Dr. Schmidt’s
specifically
also
warn
dards
Care
although
makes clear that
he does not
of the limi-
readers should be aware
“[a]ll
pa-
advocate or recommend
to his
*23
in
area.” Stan-
knowledge
tations of
this
SRS,
tients, if a
chooses to seek
he
patient
profes-
at 1. “Individual
dards of Care
a
releases all of their medical files to
sur-
programs,” the
organized
sionals and
surgeon
a letter con-
geon and writes
on, “may
of Care continue
Standards
eligible for sur-
firming
patient
that the
is
modify
appropriate.
[the standards]”
had not
Insofar as Dr. Schmidt
gery.
testimony
at 2. Dr. Levine’s
acknowl-
Id.
neutrality
surgery,
for the
this
advocated
flexibility:
edged this
with what Dr. Levine describes as
aligns
in the
accepted practice
.of
for doctors
“Standards
[DR. LEVINE]:
[T]he
patient
meets
a
from treatment of GID: “[i]f
Care” was
consensus document
...
then write
eligibility requirements
or
we
people from seven different countries
know,
...
I understand how
something, you
support
who come from a letter of
a recommen-
may perceive
it
a
others
this as
systems,
political
different
and was
...
we tell ourselves we are
forged together
a set of dation
process
[but]
gate
to their decision.” There-
“prudent”
opening
is a won-
standards....
So
inquiry,
Eighth
proving that the
clarity,
Amendment
9. For the sake of
we reiterate
imprudence
“sufficiently
more—is
provided
medical
insuf-
harmful
level of care
—without
establish an
Amendment vio-
ficient to
deliberate indifference to serious
to evidence
Estelle,
105-06, 97
106,
lation. See
429 U.S. at
Estelle,
fore, the semantic force whatever non-medical—-judgment about what distinction, we see no mate- court’s district own— experience a real-life to con- constitutes between the letters written rial difference differing Dr. view- clude that Schmidt’s confirming patient’s by Dr. Schmidt illegitimate imprudent. Pru- point was and what the Stan- readiness however, professionals, dent medical do refers to as letter dards of Care reasonably opinions regard- in their differ recommendation. requirements experi- of a real-life court next concluded that The district in ence-and this reasonable difference imprudent because anti- Dr. Schmidt was opinions is sufficient to defeat Ko- depressants psychotherapy alone are Fisher, argument. silek’s Bismark v. Cf. inadequate Again, to treat GID. the court (11th Cir.2007) Fed.Appx. testimony that it relied on the claimed in (“Nothing our case law would derive a Levine, his testimo- Dr. but misconstrued deprivation prison constitutional from a ny support of its conclusion. Dr. Levine physician’s failure to subordinate his own dysphoria “gender did in fact state that judgment to that of professional another by ameliorated ... treat- significantly ”); doctor.... Estate Cole Pardue v. ing [patients] prozac-like drug with a (7th Fromm, Cir.1996); 94 F.3d however, on, alone.” He continued to ex- (4th Godwin, Bowring v. 551 F.2d this plain that he did not believe Cir.1977). plan treatment advocated Dr. Schmidt fact, Dr. noted that an incar- Levine contrary, or the DOC. To the he under- might cerative environment well be insuffi- re- stood Kosilek would continue to expose variety cient to ceive ameliorative treatment for her GID societal, familial, pressures and vocational and, depressive if entered a or suicidal she by a experience. foreseen real-life This SRS, inability state based on her to receive viewpoint aligned with that of Dr. Schmidt antidepressants psychotherapy And, although and Osborne. Dr. For- help be used to stabilize her mental state report appears presume stein’s written so as to alleviate the risk of suicide while completed experi- Kosilek had a real-life working perspectives with her to craft new ence, point: “being it echoed this same goals beyond surgery. and life He felt helped has consolidate her [Kosilek] might that the be well success- issues, ... simplifying desire without capacity, ful when combined with *24 the stressors and choices that she would currently the direct alleviative treatments in have had to make out the outside real provided. support world.” We find no for the dis- Finally, the district court found Dr. trict court’s conclusion that no reasonable imprudent Schmidt because he did not be- expert opine medical could that Kosilek experience that a lieve real-life could occur in experience, particularly lacked real-life isolated, in prison, given that it was an light contrary testimony of the from medi- single-sex environment. The district court social, experts concerning range cal the of it disagreed, stating that had concluded a environmental, professional and consider- real-life could in experience prison, occur necessary ations that are to constitute a as Kosilek would remain incarcerated experience real-life under the Standards of In reaching her entire life. this determi- Care. The district court thus erred nation, significantly substituting the court made a its own beliefs for those of acknowledged DOC has the need to experts.10 medical direct- multiple 2003, ly Beginning treat Kosilek’s GID. in finding court’s of medical The district hormones, provided it has electrolysis, heavily on inferences we imprudence relied clothing accessories, feminine and and rightly be drawn from do not believe can mental at alleviating health services aimed testimony; finding also Dr. Levine’s parties her distress. The agree that this contrary evidence re- ignored significant care has led to a real and marked improve- variety accept- the and garding breadth in ment Kosilek’s mental state. There is treatments for GID within the medi- able dispute also no that this care would contin- community.11 cal Its conclusion that the ue, provided. whether or not SRS is consti- Fenway Center’s recommendation is, court, therefore, acceptable plan question treatment before our tuted the sole thus, not antidepressants psy- contradicted the record. is whether chotherapy alone are sufficient to treat Adequacy treatment
2.
DOC’s
GID, or
whether GID constitutes
serious
plan
Rather,
question
medical need.
whether the
to provide
decision not
SRS-in
Regarding
adequacy
the medical
of Ko-
light of the
provision
continued
of all ame-
treatment,
silek’s
the district court held
currently
liorative measures
afforded Kosi-
psychotherapy
antidepressants
lek and in addition to antidepressants and
treat
adequately
alone would not
Kosilek’s
psychotherapy
sufficiently harmful to
is
finding
GID. This
mischaraoterizes the
—is
Eighth
Kosilek so as to violate the
Amend-
appeal
unduly
on
minimizes the
sues
ment.
It
not.
v. Carpenter,
See Smith
preferred
nature of the DOC’s
(2d Cir.2003) (“[I]t’s
316 F.3d
that treat
plan. The DOC does not claim
particular
by prisoner
risk of harm faced
merely
therapy and
ing Kosilek’s GID
care,
challenged deprivation
due
antidepressants alone would constitute ad
severity
prisoner’s
rather than the
Smith,
equate care.
Fields v.
653 F.3d
Cf.
condition,
(7th Cir.2011)
underlying medical
considered
in
(accepting,
abstract,
in
evidence,
that is relevant for
contrary
expert
absence of
testi
Estelle,
purposes.”);
Amendment
see also
mony that
well
anti-
“psychotherapy as
(requiring
...
ference
ac-
by employing its standard and
harm
Anglin,
Bearden v.
543
ex rel.
Bearden
of
any prisoner
(11th Cir.2013);
cepted
treating
methods of
918,
Leav
Fed.Appx.
921
Trial testimo-
exhibiting suicidal ideation.
itt,
at 497.
645 F.3d
real
plan
offers
ny established
current
that the DOC’s
Kosilek admits
It
treatment for Kosilek’s GID.
and direct
significant
led to a
regimen has
treatment
to alleviate Kosi-
employs
proven
methods
state. Kosilek’s
in her mental
stabilization
crafting
plan
while
lek’s mental distress
same, highlighting
to the
doctors testified
minimize the risk of future harm. See
to
This
being feminized.”
“joy
her
around
at
It does not
Carpenter, 316 F.3d
186.
by
passage
out
claim also borne
needs,
wantonly disregard Kosilek’s
but
symp-
she exhibited
significant time since
Torraco, 923 F.2d
accounts for them. See
attempted
to
of suicidal ideation
toms
at 235.
alleviating
to
her
In addition
self-castrate.
state,
also
this treatment has
depressive
The law is clear that where two
changes
significant physical
resulted
alternative courses of medical treatment
appearance.
feminine
increasingly
and an
exist,
negative
and both alleviate
effects
medicine,
boundaries of modern
within the
of a future risk of sui-
significance
place
it is not the
of our court to “second
cidality
not one that
this court takes
require
guess
judgments”
medical
or to
that a
lightly,
right
and Kosilek is
to note
compassion
the more
adopt
that the DOC
may
to
clear risk of future harm
suffice
adequate options. Layne v.
ate of two
Amendment claim. See
Eighth
sustain an
(1st Cir.1981)
Vinzant,
468,
F.2d
474
657
35,
Helling,
Kosilek is
facial
removal,
accessories,
however,
warns,
clothing
upholding
feminine
treat-
course of treat-
regular
adequacy
and access to
mental health
of the DOC’s
ready
pro-
despite
to
ment in this
her medical his-
ment. The DOC also stands
case—
options.
holding
way suggests that cor-
treatment
This fact was testified to
12. This
in no
Levine,
wishing
recognized by
rectional administrators
to avoid
the UMass doc-
Dr.
simply
single practi-
DOC,
need
find a
correspondence
tors in their
well-accept-
willing
tioner
to attest
some
and corroborated
Dr. Forstein in his writ-
necessary. We do not
ed treatment
is not
report.
ten
allowing
per
rule
a dissent-
establish here a
se
engage
frenzy
in a
did
Rather,
opinion
carry
day.
finding
aimed at
the one
serial consultations
particular
to the
our determination is limited
willing
testify that
doctor out of a
hundred
appeal,
a medical
record on
which involves
Rather,
medically necessary.
it
SRS was not
condition that admits of a number of valid
*26
good
requires
of
behavior—will
relief
tory
only
and record
not
that Kosilek show
against
a de facto ban
SRS as a
create
that the treatment she received was consti-
any
treatment for
incarcerated in-
medical
tutionally inadequate, but also that
one,
agree. For
dividual. We do not
the DOC was—and continues to be—deliber-
specifically
any
has
disclaimed
at-
DOC
ately indifferent
to her serious risk of
policy regarding
to create a
tempt
blanket
Farmer,
844-45,
harm. See
511 U.S. at
SRS. We are confident that the DOC will
D. The Deliberate opinion multiple profession medical Indifference ultimately presented als and was with two 1. The reliance DOC’s on medical ex- plans, alternative treatment which were
perts each developed different medical ex perts mitigate severity of Kosilek’s subjective element of an injunctive Amendment claim for mental choice of a distress. The medical preclude finding subjective made a considered decision to seek out a deliberate in- difference, opinion expert previously second from an argument we do not find this process. considered its initial selection above, explained waived. As we have opinion presented Our rests on facts subjective objective analyses overlap. record, merely regi- and we find that the 7; Leavitt, supra See note see also 645 F.3d at provided by men of care the DOC—which 498. The DOC’s contention that the district includes hormonal treatments as well as femi- deeming medically court erred in SRS neces- removal, products, clothing, nine and hair sary rejecting approach and in Dr. Schmidt’s successfully and which has alleviated the se- imprudent necessarily entails the DOC’s verity prisoner’s of a distress—is not suffi- subjective unnecessary. belief that SRS was ciently harmful -to Kosilek to constitute an contrary position i.e., that SRS is not — Eighth Amendment violation. objectively necessary but that the DOC did disagree Although specifically not as to the need for SRS—would 13. the DOC ar- has gued wholly illogical. conflicting opinions be *27 92 adoption deference the wide-ranging that, some although' disfavored
option
practices
policies
of
and execution
field,
by competent
presented
in the
preserve
are needed to
judgment
in their
a level of
does not exhibit
professionals
and to main-
discipline
order and
internal
prisoner’s
to a
or callousness
inattention
Bell,
security.”
441 U.S.
tain institutional
violation.14
a constitutional
rising
needs
547,
Although we cannot
2. The DOC’s
Nonetheless, rath-
prison administration.
expertise
prison
also rec
to the
subjective prong
deferring
er than
administrators,
that,
ignored
the district court
security, “[p]rison
ognizes
issues
concerns,
security
rea-
stated
...
be accorded
DOC’s
administrators
should
case,
officials.”).
prison
facts of this
been aware
14.
itself should have
If
however,
highly
are
distinct from such a sce-
was receiv-
that some of the medical advice it
is,
nario.
any layperson
imprudent
if
—that
that the advice was im-
could have realized
ren-
did the district court’s conclusion
Nor
prudent
to still follow that
the decision
—then
refusal to
der the DOC’s continued
may qualify
indifference.
as deliberate
advice
deliberately
the con-
indifferent. On
SRS
Farmer,
S.Ct.
belief that
concerns
in
would arise
safety
about
a. The DOC’s concerns
the future after SRS.
Jones v. N.C.
Cf.
security
were reasonable
Union,
119,
Prisoners’
433 U.S.
Labor
n.
132-33 &
97 S.Ct.
53 L.Ed.2d
that
concerns
Recognizing
reasonable
(1977) (holding,
in the First Amend-
a
regarding
post-operative,
would arise
(cid:127)
context,
rights
ment
that
prisoners
the
being
male-to-female transsexual
housed
may
abridged
be
based on a reasonable
great
takes no
stretch
prisoners
with male
belief that future harm disruption may
Farmer,
imagination.
See
511 U.S.
occur);
Palmer,
Hudson v.
468 U.S.
848-49,
(summarizing
at
S.Ct.
cf.
517, 526-27, 104
S.Ct.
This
circumvents the
also
circular
Deference to the DOC’s reasonable
b.
rec-
in one breath
concern
DOC’s
safety and
concerns about
validity in the next.
ognize its
in this case
administrators
ultimately
The district court
dismissed
experience in
of combined
have decades
reason-
pretextual,
concerns as
DOC’s
penological institu
management
acting
was in fact
re-
*29
court,
are
tions,
they,
it
not the
who
and is
criticism.”
sponse
“public
political
to
and
security
what
best situated to determine
tending
on record
primary
evidence
Bell,
441 U.S.
concerns will arise. See
theory
press
this
includes a
inter-
support
(“[J]udicial
1861
deference
99 S.Ct.
Dennehy, Den-
by
view
Commissioner
because the administra
part]
accorded [in
nehy’s relationships with a state senator
ordinarily
grasp
... have a better
tor
will
the ac-
governor,
and the lieutenant
and
reviewing
than
of his domain
knowledgment that the DOC was aware
”).
re
judgment
The DOC’s
judge....
negative
coverage regarding
news
Kosi-
housing is without
garding post-operative
surgery.
request
lek’s
reason,”
the realm of
Battis
doubt “within
Dennehy
being
testimony,
In her
denied
ta,
F.3d at
and the district court’s
645
by
political
media and
influenced
such
possibility
alternative belief as to
that the decision not
pressures, and stated
not suffice to
safely housing Kosilek does
in bona fide
SRS
founded
undermine this reasonableness.
security concerns alone. The district
expressed
DOC officials also
con-
court, however,
testimony
found this
non-
providing
cern that
Kosilek SRS would credible,
credibility finding
and this
is the
by
threats
incentivize the use of suicide
sort of determination to which our court
prisoners
receiving
as a means of
desired
gives
deference.
See
Fed.R.Civ.P.
Although
district court de-
benefits.
52(a)(6).
accepting
Dennehy’s
Even
that,
case,
termined
in this
Kosilek’s risk
by political and
motivations were colored
real,
very
for suicidal ideation was
however, does not take
pressure,
media
finding does not invalidate the DOC’s rea-
go.
claim as far
it needs to
Kosilek’s
as
providing
might
sonable belief that
SRS
matter,
As an initial
the fact that
proliferation
among
lead-to
of false threats
Dennehy
part by
was motivated in
con
prisoners.
other
security
not
prison
cerns unrelated to
does
regarding
security
the un- mean that the
concerns articulat
The DOC’s concern—
irrelevant, wholly
acceptable precedent
by
that would be estab-
ed
the DOC were
dealing
pretextual,
importantly'
lished in
with future threats of
or—most
—invalid
Battista,
au-
our court held
by
prison
suicide
inmates to force the
on the merits.
par-
to the decisions of
comply
prisoners’
thorities to
with the
deference
could be overcome where
ticular demands' —cannot be discounted
administrators
admittedly
claim.
threats are
those administrators
relied on
minor or invalid
Such
data,
prison settings
not uncommon in
and re-
inflated
identified a
concern
authorities,
rejection
only
years
refusing
pro
after
quire
firm
who
several
acknowledged
medi
given ample
dealing
must be
discretion
vide treatment for
need,
in a
engaged
pattern
with such situations. Given the circum-
cal
here,
before
say
changing positions
arguments
we cannot
presented
stances
Battista,
Dennehy’s
at 455.
tion that
necessarily
the court.
F.3d
attitudes
delays and misstatements were
gross
Such
carried over to her
gov-
successors and
Rather,
present
here.16
the DOC tes-
unsupported by
erned their actions is
consistently
post-
that it believed the
tified
Although
record.
consideration of Den-
operative security
surrounding
concerns
nehy’s
relevant,
motivation
surely
it is
significant
treatment were
Kosilek’s
insufficient to show that the
contin-
if
problematic.17 Even
not entitled to def-
by public
ued to be motivated
pressure
id.,
erence,
those concerns still matter
see
departure,
even after her
or that this is
valid,
they
insofar as
are reasonable and
presently.
what motivates the DOC
any
did not
evidence
put
Indeed, it was Commissioner Clarke—
showing
they wholly
lacked merit.18
Dennehy
and not
made the decision
—who
here. And the
tending to
eyidence
Second,
determining
ap
when
may
show
Commissioner Clarke
have
relief,
propriateness
injunctive
our focus
public
considered
political
criticism
must include “current attitudes and con
were two letters received
Clarke—who
Farmer,
duct.”
U.S. at
S.Ct.
*30
respond
did not
leg-
Massachusetts
(“
—from
should
‘[Deliberate indifference[ ]
letters, however,
islators. These
al-
relate
in light
prison
be determined
au
entirety
most in their
to concerns about
thorities’ current attitudes and conduct’:
SRS,
cost
and the district court
their attitudes and conduct at the time suit
soundly rejected any argument
that
brought
persisting
is
and
thereafter.”
DOC,
specifically,
adopted
or Clarke
had
(quoting Helling,
conclude that Kosilek
facts,
Eighth
Amend-
to demonstrate
III. Conclusion
Accordingly,
reverse
ment violation.
we
today
not tasked
with de
We are
injunctive
court’s order of
re-
the district
ciding
provide
the refusal to
SRS
whether
case to the district
lief and remand this
uncompassionate or less than ideal.
is
to dismiss the case.
court with instructions
finding
support
Kosilek’s
Neither
and Remanded.
Reversed
The
claims of a constitutional violation.
Amendment,
all, proscribes
after
Eighth
THOMPSON,
dissenting.
Judge,
Circuit
only
care so unconscionable as to
majority
eye
turns a blind
to bind-
society’s minimum standards of
fall below
Estelle,
102-05,
instead to cobble
ing precedent, opting
at
decency. See
U.S.
case,
and non-
together
the
has
law from other circuits
ority judge’s by of the While relief ordered the district motive, court, credibility all and affirmed gauge majority assess but of the original panel, forgotten. parameters unprecedented, set the ma- Kosi- lek’s case is not a jority legally complicated foretold the result. It concludes one. Rather it is a Department dispute, fact-intensive Massachusetts which required original panel Correction did not-violate Michelle Kosi- determine That whether the district rights. lek’s constitutional conclusion court’s take on the erroneous, significant evidence, amount majority’s analytical path is and its ulti- misguided, holding to it is and the fact that mate as to the existence of an violation, subject Eighth case is even to en Amendment scrutiny banc was errone- the first I ous. I fail to place wrong. is And so dissent. see what in this framework
made
worthy
this case
of en banc review.
I am
implying
not
unimpor-
this case is
I. En Banc Grant
litigation
tant. This
significant
to Kosi-
The criteria for en banc relief are clear:
lek,
DOC,
others,
and many
and the
relief,
it is not a favored form of
and rights afforded
under the
Amend-
ordinarily should not be ordered unless ment are crucial. But if
things
those
alone
“(1)
necessary
en banc consideration is
enough, nearly every
were
case would at-
uniformity
secure or maintain
tract
the full court’s attention. And a
(2)
decisions;
proceeding
court’s
good deal more cases would be heard en
a question
exceptional impor-
involves
if disagreeing
banc
with the result reached
35(a).
R.App.
My
tance.” Fed.
P.
col- by
original panel,
or simply desiring to
leagues’
granting
reasons for
en banc re-
in,
weigh
grounds
awarding
were valid
articulated,
view are not
but it seems clear
not,
en banc
They
review.
are
but unfortu
that the
uniformity piece
maintenance of
is nately I suspect they
grounds
were the
play.
not
Therefore I can
assume
See,
Kolbe,
day
e.g.,
carried the
here.
they perceive
exceptional
an issue of
im-
(Torruella, J.,
cerning consideration); denial of en banc Vega-Santiago, United States v. 519 F.3d The issue of what standard of review (1st Cir.2008) 1, (Torruella, J., 7 employed significant dissent should be a point I ing). objective me, am at a loss to see divergence what for and indeed one that permeates criteria warranted review in this case. entirety my the discord with 98 favorable form. While majority, undoubtedly review into its most majority. The
the
that factual and
correctly-acknowledges
it
handily
more
toss aside
that it could
aware
majority
the
legal
implicated,
if it
a
issues are
findings
utilized
district court’s
the
review,
utterly
spec-
favors the de novo end of
formu-
standard
non-deferential
does not accord
borrowing liberally
approach
trum.20 This
its standard
lates
(although to read the
non-Eighth with our case law
circuits
from other
very
think
had
majority you
disre-
we
jurisprudence while
Amendment
circuit).
on-point jurisprudence
this circuit.
little
this
case law from
garding on-point
that, in theo-
The end result is
standard
one,
majority posits
For
to the low-
ry, afforded minimal deference
legal
is a
issue of deliberate indifference
majority’s
finding, and
er court’s
de novo. It relies on
one to be reviewed
essentially
afforded
application,
actual
jurisprudence, citing
Amendment
Fourth
none.
that,
criminal
in the context of decid-
cases
seizures,
validity of searches and
ground.
our common
Let me start with
suspicion
proba-
hold that reasonable
majority
that different
agree
I
receive de
play.
are in
ble cause determinations should
standards of review
When
v.
appeal,
appellate
novo
review. See Ornelas
deciding
post-bench-trial
States,
690, 699,
novo,
517 U.S.
116 S.Ct.
up questions of law de
United
court takes
(1996);
1657,
fact
clear error
99
gard
opportunity
to the trial court’s
closer to
question-of-law
end of the
judge
credibility.”);
the witnesses’
Mona
spectrum.
problem
The
though is that the
(1st
42,
Romney,
han v.
625 F.3d
46
Cir. ultimate constitutional question is inextri-
2010).
Janeiro,
cably
See also
457 F.3d at
up
138-
tied
with the factual details that
that,
trial,
(explaining
following
trial,
39
a bench
emerged at
credibility
witnesses,
“if
reading
the trial court’s
of the record
questions
of motivation.
respect
to an actor’s
against
[with
motivation] is This counsels
pure de novo review
end”)
plausible, appellate review is at an
and our
supports
own case law
this notion.
(alteration
original).
explained above,
As
a state-of-mind is
Torraco,
majority
recognizes
citing sue such as the existence of deliberate
it for the narrow proposition that “issues
typically
indifference is
left to the finder of
culpability
Torraco,
in a deliberate indifference
fact.
ized the ultimate
clear
It
has been violated?
Amendment
as a mixed
determination
cause
probable
(and
ques
majority agrees)
with
fact,
the
that de
decided
law and
question
exactitude, the
varying
“standard
its resolu-
fit for
tions
the best
was
review
novo
anal
in the
depends,
The
last
696-97,
applied
1657.
review
116 S.Ct.
at
tion.
Id.
out,
particular
to which
Court,
majority points
the extent
ysis,
as the
Supreme
or law-dominat
“[independent review”
question
is fact-dominated
emphasized
States,
con-
699 F.3d
“to maintain
help
can
Turner v. United
courts
ed.”
appellate
Cir.2012) (internal
(1st
legal principles”
quotation
clarify,
578,
of, and to
584
trol
cause
probable
omitted);
re
Clam
suspicion and
also In
IDO
see
in reasonable
marks
(1st Cir.2013);
58,
I
697,
bakes, Inc.,
1657. While
at
116 S.Ct.
64
Id.
F.3d
cases.
(1st
court
appellate
1,
as an
Cir.
disagree that
506 F.3d
Coplan,
do not
v.
Dugas
clarify legal prin-
2007).
to
required
between
Drawing
we are often
the distinction
law’s
continuity of the
fact-heavy questions
and ensure
ciples
versus
law-heavy
justi-
persuasive
do,
this is not
development,
given
tricky thing
to
sometimes
novo review here.
employing
de
Eighth
fication
Amendment
establishing an
law and
question of
involves a mixed
claim
Ornelas,
by the dissent
noted
As
must
fact,
which we
it is a
into
thicket
generalization,
requires
clarification
“[l]aw
think
is a
I do not
it
Luckily,
enter.
gener-
to
lend themselves
some issues
in this case.
thorny one
particularly
Id.
more than others.”
at
much
alization
(Scalia, J., dissenting).
116 S.Ct.
con-
Here,
reaching its ultimate
before
dealing
here
not. Cases
issues
conclusion,
The
do
trial court heard
stitutional
adequacy of medical
constitutional
fewer than nineteen
testimony from no
Amendment are
care under
medical
(e.g.,
providers,
witnesses
medical
resulting
distinc-
incredibly fact-specific,
Kosilek)
officials,
over
experts, prison
must, among
judge
The trial
tive issues.
ultimately extend-
of a trial that
the course
prison-
on the
things, have a handle
other
The court
scrutinized
years.
ed two
condition,
the treatment
er’s medical
twenty-
transpired over
that had
events
(if any),
provided
sought, the treatment
relating to
including those
year period,
providers recom-
medical
what treatment
requested,
had
what
mended,
knew and
what
the defendant
recommended,
had been
what treatment
when,
its decisions.
and what motivated
ultimately provided.
and what care
match the dis-
hope
cannot
This court
evidence about
The court considered
areas, nor
in these
expertise
judge’s
trict
review,
it
con-
how was
DOC’s
try.
want to
why we would
I fathom
can
it
It
ducted,
concerns
raised.
and the
nature”
fact-bound
“extremely
Kosilek,
credibility of
DOC
assessed
“de novo review
means that
cases
these
officials,
experts.
medical
and the
benefit,” id.
relatively
at
have
little
[will]
amount of exhib-
copious
reviewed a
court
(Scalia, J., dissenting),
700,
So literature, notes, security reports, that attaches the standard regard S.Ct. n. excessive. See id. attaches to proposition de review novo on Ornelas. that reason I focus constitutionally 2028. For whether a fine is issue of *35 correspondence, deposition testimony. lower court’s garner decision to clear error pages upon The end result was pages of review, namely factual findings and credi- findings judge.22 factual made the trial bility determinations, in actual application essentially no deference paid. The words, In other the district court “en- only conclusion of the district court that gaged in a analysis careful and close the majority evidence,” Turner, concedes warranted the trial defer- 699 F.3d ence was the judge’s to make its ultimate determination determination that DOC, that the any penologi- without valid Commissioner Kathleen Dennehy’s testi- purpose,'refused cal provide medically mony was not credible.24 Given the volu- necessary treatment for Kosilek’s life- minous case, record and the threatening condition. Given clearly the breadth of the lower court’s findings, it is review, fact-intensive nature of the court’s simply unfathomable majority that the did our own examination into whether the a single consider other fact-drawn in- court was correct that the DOC violated ference, credibility finding, or motive de- Eighth Amendment should be deferen- termination, all of which warrant defer- tial, opposed to the fresh look the ma- ence. id.; jority proposes.23 See Fed. Refinance instance, For the district court in- drew
Co.,
(explaining
Without
proffered
the DOC’s
correctly found that
analysis
its
permeates
by a court
plied
inadequate, and that
care was
regimen of
impact
The
here is
the outcome.
guides
only ap-
surgery is the
reassignment
violated sex
Amendment is
Eighth
clear. The
Based on
for Kosilek.
propriate
an
treatment
fail to
prison officials
when
record,
employs
one
care,
and when
such the
medical
adequate
inmate with
review, that conclusion
of
proper standard
suffi
[are]
‘acts or omissions
that “their
by the evidence.
supported
generously
in was
evidence deliberate
ciently harmful to
”
needs.’
to serious medical
difference
Dr.
Prudence
A.
Schmidt’s
Inc.,
Servs.,
645 F.3d
Med.
v. Corr.
Leavitt
Cir.2011)
(1st
(citing Estelle v.
484, 497
start,
majority’s qualms,
despite the
To
106,
285,
Gamble,
97,
50
97 S.Ct.
429 U.S.
court’s conclusion
the district
(1976)).
district court
L.Ed.2d 251
Schmidt, was
expert, Dr. Chester
DOC’s
established
the evidence
concluded
clearly
was not
professional
a prudent
such a violation.
had committed
the DOC
testimony, Dr. Schmidt
In his
erroneous.
analy
says otherwise but its
majority
disagreement
of
good
deal
expressed
flaws,
with its
starting
plagued
is
with
sis
of
Benjamin Standards
Harry
with the
objective prong.
as to the
determination
Care,
widely
upon by
which were
relied
testified
providers
medical
who
the other
Eighth Amendment:
III.
ac
generally
have been
below and which
Objective Prong
See,
v.
e.g., De’lonta
cepted by courts.
(4th
Johnson,
520,
F.3d
522-23
Cir.
compo-
708
objective
the so-called
Whether
2013)
(describing the
of Care
is
Standards
inquiry
Amendment
nent of the
protocols for
generally accepted
“the
alleged
de-
satisfied turns on whether
GID”); Soneeya
Spencer,
v.
sufficiently seri-
treatment of
“objectively,
privation is
(D.Mass.2012) (not
228,
Brennan,
825,
231
F.Supp.2d
851
v.
511 U.S.
ous.” Farmer
(1994)
“course of treatment for Gen
1970,
ing that the
114
mation The common unreasonable.29 thought it patients his a record prison, time in approach Dr. Schmidt’s was thinking never have.27 the outside world Kosi- effectively reduce likely to was not court’s The district is clear. The record harm, given that of self lek’s risk viewpoint that Dr. Schmidt’s determination geni- her male dysphoria her was source of experi- feasibility of a real-life about the talia. on the not based ence context, the was, as the In the Amendment It lay opinion. judge’s own “measured to, in a of medical care grounded adequacy alluded court district ” standards.’ ‘prudent professional against offered of evidence amount significant Corr., 766 F.3d Dept. all of Nunes v. Mass. professionals, competent Cir.2014) (1st DeCologe (quoting Dr. disagreed with Schmidt.28 whom *38 43). ro, district court F.2d at The course said about what can be The same not a that Dr. Schmidt was concluded here for Kosilek. appropriate was of treatment above, I prudent professional. Given had that testified Dr. Schmidt that determination am not convinced this her cur- adaptation” on “made excellent sig Dr. clearly erroneous. Schmidt’s was regimen and that treatment rent widely accepted disagreement with nificant any additional functional not “confer between sharp and the guidelines contrast not, according to Surgery was capability.” provid the other well-credentialed his and Kosi- Schmidt, medically necessary for Dr. for the strong support opinions, ers’ offer harm the risk future lek. To minimize finding. court’s Kosilek, thought employing Schmidt Dr. medication reduce psychotherapy Adequacy Treatment B. of the DOC’s needed, and, placing if Kosi- dysphoria her as court’s determination of the facility light would be effective. in a lek medical prudence, question to Dr. Schmidt’s testifying pro- majority A of the medical said, supported the evidence whether though. When remains viders otherwise treatment Dr. its conclusion DOC’s they thought about asked what majori- adequate. The medically Kapila, Drs. was not suggested regimen, Schmidt’s they them if were would be available to which majority mentions that 27. The none setting” completed a and that experts opined living that Kosilek in a non-institutional who might experience considered that she real-life and treatment elements of assessment "[a]ll facility post-surgeiy. a be housed female can be Care] in the [Standards as described theory hardly surprising is a This is this living people Id. provided to institutions.” colleagues' making. never my own The DOC post- any argument potential a made Stephen Le- 29.Court-appointed expert, Dr. change un- surgery housing rendered Kosilek vine, purely a ultimately from testified that experience, nor complete the real-life able to (absent perspective considerations a any provider opine that it was even did environment), prudent relative to consideration. deny Kosilek sex reas- professional would not However, surgery. Dr. Levine ini- signment Version of Standards 28. The Seventh view was tially opined that Dr. Schmidt's Notably it contains a came in 2011. Care out (if popular), discrepancy reasonable per- to scenarios where new section devoted disregard- Dr. apparently arose from Levine living identity are gender disorder sons with to treat Kosilek district court's order prisons such as environments institutional Considering society. this patient in free as a long-term care Standards facilities. as one of I do not list Dr. Levine 7, incongruity, Care, provides that those at 67. It Version critics. Dr. Schmidt’s care "should mirror individuals’ health ty’s of this begins neeessarily consideration issue provided her with constitution- faulty premise. It states that the “dis- ally adequate treatment.” Id. at psychotherapy trict court held that (emphasis in original). antidepressants adequate- alone would not majority nonetheless would have us GID,” ly treat finding Koslilek’s the ma- provided believe the care by the can
jority an incorrect calls characterization of withstand constitutional scrutiny. It en- issues, and a minimization of the deavors to convince giving weight little DOC’s proffered plan. treatment It is the to the shortcomings attested to in Kosi- who is majority wrong. lek’s plan, and instead focusing court was of district course well heavily on improvement Kosilek has aware that the DOC was suggesting a hormones, made since being provided elec- more comprehensive treatment plan be- trolysis, garb feminine gear, and men- yond therapy and medication. Nonethe- tal health treatment. This not in dis- less, repeatedly as it explained, it found pute; Kosilek has progressed. indeed that all treatment reassign- other than sex However, despite the short shrift the ma- ment surgery inadequate was for Kosilek. it, jority pays there ample evidence See, Kosilek, e.g., F.Supp.2d supporting the district court’s conclusion 236, 238, 240. This included the improvement was not treatment, sufficient to DOC’s past as well as in- its *39 ease suffering Kosilek’s point tended to a going treatment forward. In where other words, longer the court she was no facing did not a life-threatening minimize the regimen. DOC’s testimony Based on the risk of harm. and presented, evidence it found simply Though the DOC has been Ko- treating not, the regimen did and would going not silek for many years, the district court forward, adequately treat gender Kosilek’s found that she “continues to suffer intense identity disorder. finding This was well Kosilek, mental anguish.” 889 F.Supp.2d purview within the court’s to make. The at 202. The court chronicled the evidence:
'fact that the DOC fashioned some treat- Kosilek’s testimony own about her contin- ment, the form of therapy, hormone distress,30 ued Fenway the report Center electrolysis, and access to feminine items indicating ongoing angst Kosilek’s over her does not insulate it from liability. genitalia male high and the of likelihood Johnson, v. De’lonta the Fourth Circuit attempt, another suicide along-the- and the Court of Appeals inmate, found that an testimony same-lines of treating Kosilek’s sought who reassignment sex surgery af- psychologist, Mark Burrowes. See id. at gender ter her identity disorder failed to 226. There was also Dr. Kaufman’s testi- despite receiving hormones, resolve stated that, mony even with the the plausible treatment deliberate indifference claim. 522, provided, 708 at still suffered F.3d 525. The court from concluded that, clinically significant though Virginia the distress and Department of severe provided dysphoria, Corrections had she “quite the fact found inmate with notable.” therapy’ hormone and Dr. Brown psychological similarly, coun- testified explaining seling consistent with date, the that Standards treatment to including Kosilek’s Care, “it does not follow that they hormones, have the had not obviated her need 30. The credibly court found Kosilek tidepressants psychotherapy, according testified although Kosilek, hormone treatments had to would not alter the fact that she helped, genita- she was distressed her living male did not to want continue with her male lia and surgery. genitalia. believed that she needed An-
106
Kapila testified
ter,
Appelbaum
Drs.
Further,
evidence
there was
surgery.
treat
is to
approach
preferred
that the
tangled up
was
improvement
that Kosilek’s
gender
underlying
problem
reassign-
that sex
continuing hope
in her
—Kosilek’s
symp-
to
opposed
identity disorder —as
Dr.
provided.
be
ment
As chronicled
might produce.
it
hope,
toms
“And without
testified:
Brown
only
above,
was
the consensus
are —I wouldn’t
treatments
[DOC’s]
problem
treat that
way
adequately
to
going
they are
naught, but
say for
surgery.
reassignment
sex
with
where
improvement
level
continue her
is now.”
she
posture
procedural
forget, the
we
Lest
mention.
bears another
case
of this
documented
Thus,
Kosilek’s
even with
court’s
the district
challenging
Kaufman,
Brown,
For- DOC
Drs.
improvement,
following bench
injunctive relief
grant
all testified
stein,
Appelbaum
Kapila,
paid
trial,
regard
due
meaning that
reassignment sur-
that sex
unequivocally
credibility
findings
factual
judge’s
necessary and the
medically
gery was
Monahan,
F.3d
They
determinations. See
Kosilek.
treatment for
appropriate
yields compet-
evidence
at 46. When
was a serious
there
agreed
further
views,
permissible
or two
suicide,
ing inferences
should
harm,
likely
most
risk of
if, had we
guess, “even
second
was we cannot
surgery, which
receive the
Kosilek not
facts, might
we
sitting as
as been
triers
Fenway
voiced
doctors
a concern
judg-
set
arrived
a different
this have
majority says,
As the
early as 2005.
N.Y. v. Point Ju-
N. Ins.
ments.”
Co.
because
matters
potentiality
(1st
Mama, LLC,
F.3d
dith
beyond
protections extend
Amendment’s
Cir.2009).
judge concluded
Here the
future harm. See
suffering to
present
regimen,
33-34,
present
the DOC’s
McKinney, 509 U.S.
Helling v.
therapy
(1993);
the added medication
125 L.Ed.2d
113 S.Ct.
fallout,
post-surgery-denial
cushion
Leavitt,
at 501.
645 F.3d
*40
suffering to the
not reduce Kosilek’s
this future
The DOC’s assertion
major
a
she did not have
point where
and
with medication
be curbed
risk could
Rather,
reassignment
sex
need.
medical
day. As
carry the
cannot
psychotherapy
only adequate treatment
the
surgery was
un-
found, treating the
district court
the
As
life-threatening disorder.
for Kosilek’s
are
symptoms
its
disorder
derlying
sup-
above,
findings were
these
detailed
a
also
things, distinction
very different
two
testimony of
un-objected to
by the
ported
See Fields
Circuit.
by the Seventh
drawn
doctors, by
qualified
multiple eminently
(7th Cir.2011). In
Smith,
attempt to
policy regard-
create
blanket
ing SRS” is a non-starter. The issue is
Eighth
IV.
Amendment:
departments
not whether correctional
will
Subjective Prong
voluntarily provide
surgery,
it
A
subjective
satisfied
prong means that
precedent
by
whether
set
this court
prison officials had “a sufficiently culpable
today
preclude
will
inmates from ever be-
state of
they
mind”
showed deliber1
ing able to mount a
successful
ate indifference to an inmate’s health and
Amendment claim for sex reassignment
Farmer,
safety.
argument advanced explain trial, on to and went expressed equivalent is not the denied surgery was security con- safety and reas- that “the that sex view subjective belief his DOC’s it under- unnecessary prospect when by the presented was surgery cerns signment Moreover, mere existence for Mi- surgery reassignment taking it. sex denied does opinions contradictory medical insurmountable.” are Kosilek chelle did not the DOC security that necessarily mean home his hammered then Clarke pretextual purely for surgery deny Therefore, Kosilek even the stand. concerns on that a certainly conceivable It reasons. opinions contradictory was though there seize on could department correctional neces- medically was surgery on whether whether provider, medical from a opinion Dennehy’s and Kosilek, both sary for' to as a means compelling, it or not it found procedure deny to decision Clarke’s treatment. justify denying it, solely on securi- was, based they put in the flaw ty even more serious concerns. Another contradicted that it is theory is majority’s that the ex- majority’s presumption Dennehy Commissioner by the evidence. opinions should medical varying istence times, submitted multiple testified unpre- only an is not the DOC insulate effect, it was secu- that same report to the it has but served, argument unsupported her decision motivated rity concerns gives cor- It troubling implications. very During Den- surgery. deny to leeway with departments serious rectional testimony, when she round nehy’s first they If do not Eighth Amendment. whether about claiming ignorance was still rec- care prisoner to want (the health-ser- contracted DOC’s UMass than one medi- by or more one ommended sur- recommending was provider) vices only need find doctor they provider, cal “strictly [on] that based she testified gery, not a (typically differing mind set awith she would security concerns” safety and task). think It is no stretch difficult if told surgery even UMass still veto the here. happened what might be necessary. medically it was her recommendation had the treatment DOC surgery Then, position once UMass’s psy- a local Kapila, Kaufman of Drs. necessary pellucid medically became evaluat- who had report psychologist to the chiatrist she submitted Dennehy, standing firm themselves were doctors indicating that she was Kosilek. The court ed deny surgery based the DOC’s own in her decision recommended safety and se- took the and substantial” Yet the “alarming provider, UMass. on the time Fenway Her final doc- curity having concerns. step of unusual stand, Dennehy testified peer reviewed tors’ recommendation view, preventing thing, Osborne, her social an out-of-state Cynthia concerns; safety Kosilek was about sex opinion known with a worker concerns, have Dennehy would absent such highly It surgery. seems reassignment any medical interfere with no reason to looking simply DOC was unlikely that the *42 for order treatment. Kosilek’s complete picture of a more for pre- and that options, Osborne’s to Commis- regard with evidence being pro- to Kosilek opposition dictable was on the issue stance sioner Clarke’s a non-factor. surgery was court, vided Clarke report to the his similar. In working with knew Osborne DOC opinion any ability to render disclaimed Report. Fenway simply peer reviewed but rather had with Kosilek who had met not
109 Co., Virginia departments and Wisconsin 352 at F.3d 27-28 (noting that a clear help corrections to error defend lawsuits filed look makes sense when there are intent). transgender prisoners, questions internal DOC motive and meeting minutes noted “may that Osborne (cid:127) course, Of it has many years been since objective do more evaluations” and was providers medical began considering the sympathetic position.” “[m]ore to DOC propriety of surgery for Kosilek. Back Predictably, Osborne was one-hundred I, during Kosilek Dr. Forstein recom- percent sympathetic. mended that Kosilek be allowed to consult with a surgeon who specialized in sex reas- Security
B.
Concerns
signment surgery.
Then in
Dr. Seil
dispute
There is no
“security
con-
said Kosilek should be allowed to meet
...
prisons,”
siderations
matter at
leaving
specialist
with a
year
after a
on hormones.
“ample room for professional judgment.”
right
But
when she started as commission-
Clarke,
449, 453,
v.
Battista
645
er,
F.3d
454
Dennehy
made
curious move. She
(1st Cir.2011). “Any professional
judg-
reassessed the
being provided
care
to all
ment that decides an issue involving condi-
inmates suffering
gender
from
identity dis-
tions of
order,
confinement must embrace securi-
despite the DOC’s contract with
ty and administration
merely
and not
UMass placing
medical
squarely
care
judgments.”
at
(quoting
Id.
455
purview.
UMass’s
Then once the Fen-
Tomes,
(1st
Cameron v.
990 F.2d
way
opined
doctors
in 2005 that Kosilek
Cir.1993) (emphasis in original)). But it is
should be allowed to
surgery,
have
also true that at some
a defendant
point
DOC
away
frittered
time claiming
to
deference,
forfeits the advantage of
in-
for
understand that UMass recommended sur-
following “pattern
stance
of delays, new gery for
majority
Kosilek. The
does not
objections
ones,
substituted for old
misin- quibble with the court’s finding that
negatives.”32
formation and other
Id. The
prevaricated
DOC
respect
in this
because
district court determined that
the DOC it “does not undercut the consistency with
just this,
had done
causing
delay
undue
they
which
safety
identified
security
treatment regimen,
Kosilek’s
manufactur-
concerns.” This
point.
misses the
To es-
concerns,
and orchestrating a
subjective intent,
tablish a
“it
enough
for
half-hearted security review. The record
prisoner
to show a wanton disregard
supported
conclusions,
amply
these
yet the
sufficiently
‘by denial, delay,
evidenced
”
majority
easily
them,
too
discounts
espe-
prescribed
interference with
health care.’
cially given
Battista,
the deferential look this issue
(quoting
645 F.3d
DesRo
See,
Torraco,
e.g.,
siers,
warrants.
19);
The DOC even admitted at oral female among sex offenders a postoperative, transgen- ment had would create a risk However, of violence. der person society out free committed once the actually stopped to conduct murder, the DOC would have to figure out review, a security it determined' there DOC; person. where to house that were no current security concerns with however, did not a particularly think this being Kosilek provided estrogen therapy. important point, protesting that Kosilek security Indeed no issues ever arose. Ko- presents unique separate concerns that silek has safely been housed at MCI-Nor- her from hypothetical inmate. I am many folk for years presenting herself as unmoved. The fact that Kosilek’s crime female. The DOC’s reversal on this issue against one of violence a woman could calls question into its stance before this equally apply to potential another inmate. court about the non-feasibility housing And the fact gained notoriety Kosilek post-surgical Kosilek at MCI-Norfolk. by litigating against DOC all these The DOC also expressed concern that years words, other successfully pursu- —in providing Kosilek with would en- ing her constitutional right adequate courage inmates to utilize suicide threats hardly compelling seems a care— benefit, to receive a desired and major- consideration. ity deems this concern I reasonable. am court, For the district also blunting the convinced, and neither was the district DOC’s fervent overwhelming cries of secu- court. Not absolutely there no rity concerns were the plac- alternatives to evidence that trying Kosilek is game general Kosilek in the population aof system, DOC, but the as it emphasized at prison. Massachusetts There was the op- trial, employs professionals mental health tion of transferring Kosilek to an out-of- policies has in place to deal with sui- state (though this appears scenario cidality. Presumably, these tools can be to have been largely left unexplored by the by used the DOC to assess whether an DOC). fact, In the evidence established particular inmate’s suicide threat is manu- that Clarke’s former employer, the Wash- real, factured or and it can be dealt with ington Department Corrections, housed accordingly. That the DOC does not want a post-operative transgender female in- to be hypothetical inundated with a influx mate, also serving a life sentence for mur- of false suicide hardly threats seems a relative, dering female without security deny valid reason to prisoner care or climate issues. The housing inmate’s medically deemed necessary. was so unremarkable that Clarke was not even aware of it during his tenure in court, For the district public Washington. Further, there was evidence political disapproval of Kosilek’s surgical safety that Kosilek’s could be ensured pursuit was another factor. It did not placing her in a segregated housing unit. Dennehy’s believe and Clarke’s claims that past The DOC’s the avoidance of controversy played conduct was also rele- no vant to the district role credibility deny DOC’s decision to surgery. court’s as- /, sessment. The majority concedes that give connection Kosilek it must then Commissioner Maloney Michael ham- deference to the finding court’s that Den- mered the nehy’s serious concerns sur- motivations were by public colored rounding remaining so, instead, pressure MCI-Nor- majority hormones, folk while receiving theorizing hypes up the role of Commissioner Clarke (with that an inmate as a living female characterizing him as the ultimate deci- *45 Kosilek, 889 See credible witness. pletely with the flaws a few I see sion maker. (“[T]he securi- purported at 241 F.Supp.2d reasoning. majority’s Dennehy and Clarke that considerations ty says the district majority one, the For deny to decisions their motivated claim moti- .Dennehy’s imputed improperly court are surgery reassignment sex Kosilek injunc- the Clarke, ignoring thus to vations con- genuine any possible largely false into take that it requirement tive-relief to exaggerated greatly been cerns have present-day then the account DOC’s pre- the denying for pretext a 845, 114 Farmer, at 511 U.S. See stance.33 treatment.”) fact, court In the scribed at U.S. Helling, 509 (quoting S.Ct. claims made certain specifically found 2475) (The delib- considers court 113 S.Ct. “ at 244 id. credible. See to be not Clarke of the light ‘in indifference erate Dennehy nor Clarke “neither (finding that conduct,’ attitudes and current authorities’ for explanation a credible provided has time at the and conduct ... attitudes their gen- if that Kosilek’s belief purported their thereafter.”). persisting brought and is suit and oth- to him the risk are italia altered court wrong. The it majority has materially mag- bewill at MCI Norfolk ers Clarke, his reviewed testimony from took Dennehy and claims “[t]he nified” and extensively its spoke report, written reassign- sex they have that denied Clarke convinced it was not why about decision in part Kosilek because surgery for ment surgery based Kosilek denied that Clarke sufficiently se- is not Framingham MCI Of concerns. penological legitimate on Kosilek, who escape by an prevent cure to to have sought who note, it was Kosilek flee, not credi- are attempted to has never position, his inform the court Clarke Dennehy, ble.”) Therefore, it did with that trial DOC, stipulated at which the regard due giving majority should be the mak- decision Dennehy operative the was that was Clarke conclusion to the court’s testify- objected to Clarke even er, actually not believable. the “maintain[ing] simply he was ing as through by the DOC forth set position the mark with majority also misses Dennehy.” former Commissioner “only evidence” the contention its consid- may have Clarke tending to show majority de- Furthermore, though the were the criticism political public it ered Dennehy, take on the fers court’s to unhappy the Massachu- from Clarke, claiming that two letters so to do refuses not whole the legislators. This to setts court never found the was “Clarke letters, what the addition to entirely picture. ac- This is not non-credible.” be im- court that Clarke was the court’s convinced Clearly import curate. in- advancing his properly motivated securi- articulated that Clarke’s conclusion following hasty security concerns flated exaggerat- false or were either ty concerns operate not review, he did suggesting means deny surgery pretext ed as Having already de- mind. an open com- with did think Clarke court not clear, reviewing the district we are To be and conduct attitudes a defendant’s 33. While DOC, through Den- are rele- that the is rendered court’s decision time decision Clarke, vant, today is not. the DOC nehy what motivates denied given may be less than clear would fact Indeed it This pretextual reasons. based present majority’s DOC’s reference dis- for the amazing prescience feat of be motivat- ("proof the DOC remains stance view- anticipate what the DOC’s trict court concerns”) and improper by pretextual ed penning its years after two point be years Dennehy seven is now the fact decision. decision-making process. from removed tailed the evidence supporting my colleagues, court’s would have drawn these proffered distrust of the DOC’s same conclusions had we presiding been concerns, I irrelevant; will rehash. over trial our review is circumscribed. It is enough that the dis- thoroughness As for the of Clarke’s re- trict court had a reasonable basis for’ its view, the court criticized Clarke for not judgment. The district court’s determina- consulting with Spencer, who was .Luis tion that subjec- Amendment’s Superintendent of MCI-Norfolk at *46 prong tive was satisfied should stand. time, and reviewing for not the DOC’s security-expert testimony, prior trial to de- V. Conclusion
ciding
deny
whether
surgery. The
Clarke,
DOC counters that
pursuant to the
I am confident that I would not need to
order,
court’s
required
was not
to do ei-
dissent,
pen this
over twenty years after
of
things.
ther
those
It is both conceiva-
quest
Kosilek’s
for constitutionally ade-
that Clarke’s review was too cursory,
ble
quate medical
began,
care
were she not
or that he
by
felt constrained
the court’s
seeking a treatment
many
see as
order, though the fact that Clarke did not
strange or
Prejudice
immoral.
and fear of
significant
know
details such as Kosilek’s
unfamiliar
have undoubtedly played a
age and excellent disciplinary record fa-
protraction.
role
this matter’s
Whether
vors the former possibility.
way,
Either
today’s
brings
close,
decision
this case to a
views are permissible,
both
which means
say.
I cannot
But I am confident
this
the district court’s choice of one of
time,
decision will not
the test of
stand
clearly
them cannot be
erroneous. See ultimately being shelved with the likes of
Monahan, 625 F.3d
ap-
at 46. Nor is it
Plessy
Ferguson,
537,
v.
U.S.
163
16 S.Ct.
for us to
propriate
second-guess the
1138,
(1896),
Ultimately, there adequate relief, eviden- en banc decimates the deference tiary support for the court’s determination judge trial, to a trial paid following a bench deliberately that the DOC was indifferent. aggrieves already marginalized commu- The court did not obviously err in nity, conclud- systems enables correctional delayed the DOC implementing medi- postpone adjustment their farther to the cal recommended its own crumbling gender binary. providers, sought out a more favorable respectfully I dissent. opinion,
medical hasty, in a engaged re- security review, sult-driven offered a host KAYATTA, Judge, dissenting. Circuit poorly thought security concerns, out of surgery and then denied any based not on Reading lengthy oft- majority’s legitimate penological concerns but on a applicable revisited discussion of the stan- I, controversy. review, fear of any of Whether dard of one think that this 114 of Ko- that treatment tors, informed application law or issues posed
case in accordance medical condition silek’s so. not plainly This is to fact. law re- standards professional prudent with word, comma, much less is not There (SRS).34 reassignment sex quires district court that the law applicable (1) questions: only two factual That leaves correctly explain and expressly did that SRS is correct DOC’s doctors Are the judges all the parties All the apply. condition for Kosilek’s only treatment agree judge, trial case, including the modern that is commensurate law, long controlling' principles on the profession- by prudent practiced science Supreme Court. ago established (2) officials and, so, prison als;35 if Did 97, 104, Gamble, 429 U.S. Estelle v. See not be- deny that treatment nevertheless (1976); 285, Farmer 50 L.Ed.2d S.Ct. doctors, own they their cause disbelieved 837, Brennan, S.Ct. 511 U.S. v. security consid- and not because (1994); also see 128 L.Ed.2d they erations, simply because but rather *47 F.2d DeCologero, 821 v. States United answer to public ridicule. If feared law, (1st Cir.1987). prison a Under 43 “yes,” Kosi- questions these two each of prisoners its care to supply medical must Otherwise, loses. she win. lek should with reasonably commensurate a level “at quality of a science and medical modern charged with trial judge I the Were professional prudent within acceptable questions these two factual answering at 43. DeCologero, 821 F.2d standards.” record, I would solely on the written based care, moreover, such failure to The first on the against find Kosilek likely an Amendment not constitute does trial by stated for the reasons question to the level of it rises violation unless Dr. independent expert, appointed court’s to a “serious “deliberate indifference” Levine, nutshell, who In a Dr. Levine. “Deliberate indifference” medical need.” of drafting Standards in participated “knows of official means Care, carefully per- and nuanced provided inmate risk to disregards an excessive and has testimony that science medical suasive Farmer, U.S. at safety.” 511 health or wide, scientifically driven a not reached medical 837, 1970. A “serious 114 S.Ct. only ac- as the mandating consensus SRS as, among things, other need” is defined in- for incarcerated ceptable by physi diagnosed that has been “one IBut am gender dysphoria. with dividual mandating treatment.” Gau as cian in case. Nor are judge trial not this Salem, Mass., Municipality v. dreault the rub. colleagues. And that is my (1st Cir.1990). F.2d 208 923 the trial jurist experienced The who nec- in this case therefore Our decision case, actually sat judge this who the facts themselves. essarily on turns as testimony, live found to the and listened knowing that review begin And we our fact that: matter have a serious Kosilek does indeed (1) modern medical doctors, as well Commensurate need, own prison’s and the would rec- science, professional prudent no by doc- retained those specialists as the words, majority’s "whether SRS is challenge 35. face witnesses 34. None these opinions grounds medically necessary component are outside of Kosilek’s their accepted See Daubert care, science. the bounds of any of treatment not course such Pharm., Inc., U.S. v. Merrell Dow constitutionally surgery inade- including 589-90, 113 S.Ct. L.Ed.2d quate." Op. at 86. (1993). any treatment for edge ommend other quickly advances and without regard SRS; than to, settled norms and arrangements. It sometimes in its draws wake a reluctant (2) Prison officials nevertheless denied community, unnerved notions that chal- they rejected the treatment not because lenge our views of who we-are and how we accuracy of the medical ten- advice fit in the universe. The notion that hard- doctors, their own and not dered be- aspects wired gender may unerring- not issues, security cause of but rather be- ly and inexorably correspond physical they public cause feared ridicule. Their anatomy is especially unnerving for many. denying reasons for the necessary treat- solution, think, I ment is to were thus bad faith. trust our trial judges to resolve these factual issues when majority never explains why these supports evidence a finding way. either findings fact, two are pure findings not Some get will it wrong; most will get it subject are therefore solely to over, right. The arc of decision-making, for clear error. review Nor can it. After time, will bend towards the latter. For all, about, first, talking arewe what the each instance of error in fact-finding, such legal medical—not of care is for —standard possibly itself, $25,000 this case or so particular affliction, second, whether may be lost. But doctors lawyers will Dennehy and Clarke were truthful de- presentations réfine their and other trial scribing their objections, such as judges will make their own findings, not their claim that they Kosilek, feared that any bound in way by the fact-finding in trying after to get twenty *48 this case. years, escape way on the to the Instead, by deciding the facts this or, operating room fresh from the sur- ease as an court appellate essentially find- knife, geon’s overpower her guards law, majority any ends for search away. run plain Let me point: be on this through the truth continued examination today, Until there was absolutely prece- no of the medical evidence the trial courts. (and none) dent the majority cites for re- It locks in an answer that all binds trial viewing such quintessentially factual find- courts in the circuit: no prison be may ings anything under other than the clear required to SRS to a prisoner who error test. from gender dysphoria suffers long as a Judge As Thompson carefully explains, up official calls Ms. Osborne or Dr. there is a considerable amount of evidence Schmidt.36 Acknowledging major- that the that directly supports the trial court’s ity may facts, well be correct on the I findings on points, these two depending nevertheless decline the join invitation to which witnesses one believes. write sep- I majority in embracing authority arately only to stress that if even one suspect decide I facts. that our court agrees majority with the that the district will devote some effort in coming years got court fact-finding wrong, we case, to distinguishing eventually defer should unless the clearly result reducing it ato one-off reserved course, erroneous. Of deferring to the transgender prisoners. trial judge’s fact-finding happens pro- duce a result in this case that some of us surprising,
find public and much of the
likely finds shocking. Scientific knowl- prisoner likely
36. No to have a more favor- able record than Kosilek.