Battista v. Clarke

• Decision Date: 20 May 2011
• Docket Number: No. 10–1965.,10–1965.
• Citation: 645 F.3d 449
• Parties: Sandy J. BATTISTA, Plaintiff, Appellee,v.Harold W. CLARKE, Commissioner of the Massachusetts Department of Correction, and Michael Corsini, Superintendent of Massachusetts Treatment Center, Defendants, Appellants.Kathleen M. Dennehy; Robert Murphy; Steve Fairly; Susan J. Martin; Gregory J. Hughes; UMass Correctional Health Program; Terre Marshall, Defendants.
• Court: U.S. Court of Appeals — First Circuit

645 F.3d 449

Sandy J. BATTISTA, Plaintiff, Appellee,
v.
Harold W. CLARKE, Commissioner of the Massachusetts Department of Correction, and Michael Corsini, Superintendent of Massachusetts Treatment Center, Defendants, Appellants.Kathleen M. Dennehy; Robert Murphy; Steve Fairly; Susan J. Martin; Gregory J. Hughes; UMass Correctional Health Program; Terre Marshall, Defendants.

No. 10–1965.

United States Court of Appeals, First Circuit.

Heard March 7, 2011.Decided May 20, 2011.

[645 F.3d 449]

Richard C. McFarland, Legal Division, Department of Correction, with whom Nancy Ankers White, Special Assistant Attorney General, was on brief for appellants.Neal E. Minahan, with whom Christopher D. Man and McDermott Will & Emery LLP were on brief for appellee.

[645 F.3d 450]

Before BOUDIN, Circuit Judge, SOUTER,^* Associate Justice, and STAHL, Circuit Judge.BOUDIN, Circuit Judge.

In 1983, in state court in Massachusetts, Sandy Battista (born “David Megarry”) was convicted of the rape of a child, robbery, and kidnapping. After serving that sentence, Battista was involuntarily committed in 2003 in a civil proceeding, Mass. Gen. Laws ch. 123A, § 14 (2008), to the Massachusetts Treatment Center for Sexually Dangerous Persons (“Treatment Center”). Such persons are held civilly without limit in time until adjudged safe for release. Id. §§ 9, 14.

The Treatment Center, for which the Massachusetts Department of Correction (“the Department”) is responsible, Mass. Gen. Laws ch. 123A, § 2, is an all-male facility housing three groups: criminals participating in treatment programs, civilly committed residents, and those awaiting adjudication as “sexually dangerous persons.” Massachusetts law requires that civil detainees like Battista be separated from criminal ones. Durfee v. Maloney, Nos. CIV. A. 98–2523B, CIV. A. 98–3082B, 2001 WL 810385, at *15 (Mass.Super.Ct. July 16, 2001).

Battista is anatomically male but suffers from “gender identity disorder” (“GID”), a psychological condition involving a strong identification with the other gender. GID is a disorder recognized in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). The diagnostic criteria include not only “cross-gender identification” but also “clinically significant distress or impairment in social, occupational, or other important areas of functioning.” Id. at 537–38.

In 1996, Battista changed her name to Sandy and began to seek treatment from the Department, including administration of female hormones and access to female garb. Her early demands were met with skepticism and resistance. ¹ In 1997, a Department consultant diagnosed her GID, but the Department offered no further evaluation or treatment until 2004. Prior to this case, Battista filed two suits seeking GID treatment and accumulated expert opinions confirming the seriousness of her condition and recommending accommodations including hormone therapy.

Battista filed her complaint in the present suit in July 2005 and in October 2005 sought to castrate herself with a razor blade. The suit, against various officials of the Department, charged deliberate indifference to her medical needs in violation of the Eighth and Fourteenth Amendments and 42 U.S.C. § 1983 (2006), as well as state law, including Mass. Gen. Laws ch. 12, §§ 11H–11I. In particular, Battista sought an injunction requiring that hormone therapy and female garb and accessories be provided to her.

In and around 2005 and 2006, the Department fenced with its own healthcare provider, the University of Massachusetts Correctional Health Program, which offered strong support for the GID diagnosis, asserted that harm could easily occur without adequate treatment, and recommended hormone therapy as medically

[645 F.3d 451]

necessary. The Department instead hired another gender specialist, who then agreed that hormone treatment might be appropriate along with other therapy.

Battista's first request to the district court for a preliminary injunction was denied in March 2006, with a finding that the defendants had not at this stage been shown to be deliberately indifferent to her medical needs. Battista v. Dennehy, No. 05–11456–DPW, 2006 WL 1581528, at *9–10, *12 (D.Mass. Mar. 22, 2006). After the further medical assessments continued to recommend hormone therapy, the Department stated that it would not implement treatments until security concerns were further evaluated. This proved to be a drawn-out process.

In August 2008, the first security review by the Department concluded that a feminine appearance would endanger Battista. The core security concern throughout has been that sexual contacts or assaults by other detainees would be made more likely by female clothing and accessories and the enhancement of breasts due to hormone therapy. The report, however, was fairly cursory, comprising only a few paragraphs, and in December 2008 the district court entered a preliminary injunction requiring psychotherapy, access to women's attire and accessories, monthly reports on Battista's condition, and a recommendation on hormone therapy after a six-month review.

In the six-month report, the doctors again prescribed the hormones. A first dose was administered, but then the Department put another indefinite hold on treatment pending a second security review. The September 2009 review again found the safety risk too high. This new report was more substantial although it more or less duplicated an earlier report prepared for an inmate who also had requested and been denied hormone therapy. Its security evaluation is at the core of the Department's substantive objection to hormone therapy for Battista.

Although hormone therapy had been provided for GID to inmates of some male prisons, the September 2009 report included data gathered under the Prison Rape Elimination Act of 2003 (“PREA”) § 4, 42 U.S.C. § 15603, to argue that the risk of sexual assault was higher at the Treatment Center as compared to other facilities of the Department, including prisons. The report noted that Treatment Center residents were sex offenders and that the Treatment Center had an open floor plan. It stressed Battista's past infractions and the inability to move her to another facility because of her civil commitment status.

A bench trial took place in June and August 2010. In the course of the trial, Battista offered an evaluation from psychiatrist George Brown. He testified that Battista was eligible and ready for hormonal treatment, that the past treatment for her GID “falls below any reasonable standard of care,” and that with a

high degree of medical certainty ... when this patient loses hope again regarding access to appropriate care, she will engage in surgical self-treatment by autocastration or will hire someone to do this for her. This could lead to an inadvertent death due to exsanguination.

On August 3, 2010, the court stated that it would enter a modified preliminary injunction order requiring hormone therapy to begin shortly. On August 23, 2010, the district court delivered a detailed oral decision, which recounted the history and made numerous findings in support of its injunction, applying the usual four-part test for preliminary relief, Iantosca v. Step Plan Svcs., Inc., 604 F.3d 24, 29 n. 5 (1st Cir.2010) (likelihood of success, irreparable harm, balance of hardships on the opposing sides, public interest).

[645 F.3d 452]

In its decision, the district court unqualifiedly required hormone therapy.² The injunction is styled as preliminary because both sides sought a ruling on implementation issues—specifically, how restricted Battista may be in her confinement—which the district court now has under consideration; but hormone therapy has now been definitively decreed. That directive was stayed by the district court pending appeal, as defendants requested, solely because the district court feared harm to Battista if hormone therapy were begun and later stopped again.

The district court's ultimate finding of “deliberate indifference” rests on several different subordinate findings, which can be recast and summarized under two headings: first, that Battista has an established medical need for hormone therapy, may suffer severe harm without it, and (implicitly) that such therapy is feasible despite safety concerns; and second, that the defendants' reliance on their administrative discretion in invoking and dealing with security concerns has been undercut by a collection of pretexts, delays, and misrepresentations.

The focus of this appeal is narrow. The Department concedes that Battista suffers from GID and needs treatment and that hormone therapy has been recommended as...