222 F.3d 99 (2nd Cir. 2000), 98-2954, Cuoco v Moritsugu

Docket Nº:Docket No. 98-2954
Citation:222 F.3d 99
Case Date:July 28, 2000
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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222 F.3d 99 (2nd Cir. 2000)






Docket No. 98-2954

United States Court of Appeals, Second Circuit

July 28, 2000

Argued: November 3, 1999

Appeal from two orders of the United States District Court for the Southern District of New York (Lawrence M. McKenna, Judge) insofar as they denied defendants-appellants' motion for summary judgment. The plaintiff cross-appeals from the orders insofar as they dismissed her complaint against the defendants who have not appealed. We hold that all the defendants were entitled either to absolute or qualified immunity.

Reversed in part, vacated in part, and remanded.

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Mark R. Kravitz, Wiggin & Dana, New Haven, CT (David J. O'Callaghan, on the brief), for Plaintiff-Appellee-Cross-Appellant.

Edward Scarvalone, Assistant United States Attorney, New York, NY (Mary Jo White, United States Attorney for the Southern District of New York, and Kay K. Gardiner, Assistant United States Attorney, on the brief), for Defendants-Appellants-Cross-Appellees and Defendants-Cross-Appellees.

Before: McLAUGHLIN, Jacobs, and Sack, Circuit Judges.

Sack, Circuit Judge

Plaintiff John Andrew Cuoco brought a pro se action claiming that she was denied estrogen treatments while incarcerated as a pre-trial detainee in the all-male Federal Correctional Institution at Otisville, New York ("FCI Otisville") in violation of, inter alia, her Fifth, Eighth and Fourteenth Amendment rights. The defendants and their employment at the time suit was instituted are:

J. Michael Quinlan Director, Federal Bureau of Prisons Kenneth Moritsugu, M.D. Medical Director, Federal Bureau of Prisons Gregory L. Hershberger Warden, FCI Otisville Donald Moore Health Services Administrator, FCI Otisville Robert D. Barraco, M.D. Chief Medical Officer and Chief of Health Programs, FCI Otisville Muhamad Malik, M.D. Psychiatrist, FCI Otisville Martin Salamack, Ph.D. Chief Psychologist, FCI Otisville

The United States District Court for the Southern District of New York (Lawrence M. McKenna, Judge) granted a motion to dismiss the complaint as to defendants Hershberger, Moore, Malik, and Salamack. The court declined to grant a motion to dismiss or for summary judgment brought by the remaining three defendants, Barraco, Moritsugu, and Quinlan (collectively the "Defendants-Appellants"). We conclude that all of the defendants enjoyed either qualified or absolute immunity from suit and were thus entitled to summary judgment. We therefore reverse in part, vacate in part, and remand to the district court for it to enter judgment for all the defendants.


According to her detailed, carefully drafted amended pro se complaint, from which we draw the facts for purposes of this appeal, Cuoco was a pre-trial detainee at FCI Otisville beginning September 5, 1991. She was a preoperative male to female transsexual.1 Prior to her arrest, she had been receiving synthetic estrogen treatments under the supervision of a physician to treat her gender identity dysphoria or transsexualism.

When Cuoco entered FCI Otisville, she told a physician's assistant about her condition. She also explained that she had been taking estrogen at dosages that were to be lowered three months later when she was to be operated on to remove her testicles. Cuoco was allowed to keep for self-administration the ten tablets of the hormone she had with her when admitted to the prison.

On September 10, Cuoco left her cell in administrative segregation to meet with

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the defendant Dr. Barraco. As he emerged from his office Barraco asked the corrections officer who had escorted Cuoco to his office whether he had brought "the HE/SHE." During the course of an ensuing medical interview, Barraco told Cuoco that he knew "absolutely nothing about transsexuals," and that he had "never diagnosed or treated a transsexual in [his] entire medical career." He asked Cuoco whether she expected the Bureau of Prisons to give her sex-change surgery and Cuoco responded that she had no "plans to undergo any surgery while incarcerated." Barraco agreed to renew Cuoco's prescription for synthetic estrogen, but only at one-quarter the level of her previous dosage.

The Bureau of Prisons Health Services Manual contains a paragraph devoted to treatment of transsexuals.

It is the policy of the Bureau of Prisons to maintain the transsexual inmate at the level of change existing upon admission to the Bureau. Should responsible medical staff determine that either progressive or regressive treatment changes are indicated, these changes must be approved by the [Bureau of Prisons] Medical Director prior to implementation. The use of hormones to maintain secondary sexual characteristics may be continued at approximately the same levels as prior to incarceration, but such use must be approved by the Medical Director.

Bureau of Prisons Health Services Manual, Program Statement 6000.3, § 6803.

A week after the interview, on September 17, Barraco told Cuoco that she would not get any synthetic estrogen because, not yet having undergone surgery, she was not a "true or genuine transsexual." He said that the Bureau of Prisons policy applied only to "true transsexuals." He told her that if she wanted hormones nonetheless, she would have to file an administrative remedy form.

In response, Cuoco threatened suicide. The defendant Salamack, chief psychologist at the prison, was then summoned. He attended to Cuoco's suicide threat but told Cuoco that because he was a psychologist and not a medical doctor, there was nothing he could do about her medication.

Cuoco began to suffer psychological and physical withdrawal symptoms resulting from the termination of the estrogen treatment. On September 20, Cuoco made further suicide threats, in response to which she was placed in a cell in the prison hospital furnished only with a stained mattress on a concrete slab. She was stripped to her underwear and forced to sleep with the lights on in the cold. When she complained of a resulting sore throat, she was told she would spend another day in the cell.

Cuoco had two brief meetings with the defendant Malik, a prison staff psychiatrist, during this period. He refused to discuss her medical problem with her and indicated that he could do nothing about the denial of the estrogen tablets.

Also on September 20, Cuoco filed an informal grievance. Barraco called Bureau of Prisons Medical Director Moritsugu to ask for authorization to deny Cuoco's request for hormone treatment. Moritsugu denied Cuoco's request by telephone even though, according to Cuoco, he knew or should have known of the withdrawal symptoms that would result. On September 23, Cuoco complained in writing to Health Services Administrator Moore about the denial of her medication and its implications. Moore did not respond.

On September 24, Barraco told Cuoco that Moore and Warden Hershberger had been apprised of the situation. The following day Cuoco spoke to Hershberger. He refused to hear Cuoco's complaints, remarking that Cuoco "should act like a man the way God intended."

After a flurry of legal activity, a disciplinary hearing officer said he would talk to both Hershberger and Barraco about

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the matter. And on October 25, Cuoco's lawyer sent Hershberger a letter asking about Cuoco's request for estrogen. There was no response.

Cuoco then filed her complaint. The defendants moved to dismiss it, or, in the alternative, for summary judgment, arguing that they were entitled to absolute immunity or qualified immunity and that the complaint failed to allege their personal involvement in the conduct at issue. They also claimed that there was no evidence in the record to support the assertion that Cuoco was a transsexual, rather than a homosexual who took estrogen for aesthetic purposes. Cuoco did not respond to the motion.

In a November 19, 1992 memorandum and order, the district court, construing the lawsuit's § 1983 claims as claims under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), because the defendants were federal rather than state officers, see Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.4 (2d Cir. 1991), and the cruel and unusual punishment claim as a "deliberate indifference" claim under the Due Process Clause of the Fifth Amendment, see Ingraham v. Wright, 430 U.S. 651, 671 & n.40 (1977), dismissed the complaint as to Hershberger, Malik, Moore and Salamack for failure to state a claim upon which relief can be granted. The court found that the plaintiff had stated a claim against Barraco, Moritsugu and Quinlan, however, and that genuine issues of material fact existed with respect to the allegations against them. It therefore denied Barraco, Moritsugu and Quinlan's motion for dismissal or summary judgment.

On December 30, 1992, the Defendants-Appellants moved for reargument. At their request, the district court issued a memorandum endorsement dated January 15, 1993 that vacated the November 19, 1992 memorandum and order for the limited purpose of providing the district court with an opportunity to decide the reargument motion prior to the expiration of the defendants' time to appeal. Meanwhile, on January 11, 1993, Cuoco moved for reconsideration of the November 19 memorandum and order pursuant to Fed. R. Civ. P. 60(b). In support of her motion, Cuoco filed a carefully drafted, seventeen-page affirmation setting forth her version of the facts. Her appellate counsel characterizes the affirmation as "contain[ing] a graphic and detailed...

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