821 F.2d 408 (7th Cir. 1987), 86-1144, Meriwether v. Faulkner

Docket Nº:86-1144.
Citation:821 F.2d 408
Party Name:Lavarita D. MERIWETHER, Plaintiff-Appellant, v. Gordon H. FAULKNER, et al., Defendants-Appellees.
Case Date:June 04, 1987
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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821 F.2d 408 (7th Cir. 1987)

Lavarita D. MERIWETHER, Plaintiff-Appellant,


Gordon H. FAULKNER, et al., Defendants-Appellees.

No. 86-1144.

United States Court of Appeals, Seventh Circuit

June 4, 1987

Argued Jan. 23, 1987.

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William D. Heinz, Jenner & Block, Chicago, Ill., for plaintiff-appellant.

Michael A. Schoening, Deputy Atty. Gen., Indianapolis, Ind., for defendants-appellees.

Before CUMMINGS and POSNER, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

CUMMINGS, Circuit Judge.

Plaintiff, 1 currently an inmate at the Indiana State Prison in Michigan City and previously at the Indiana State Reformatory

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in Pendleton, 2 brought this action under 42 U.S.C. Sec. 1983 challenging the available medical care and the conditions of confinement in the Indiana Department of Corrections. Named as defendants are Gordon Faulkner, Commissioner of the Indiana Department of Corrections; Norman Owen, Superintendent of the Indiana Reformatory at Pendleton; Han Chul Choi, M.D., Medical Director at the Pendleton institution; and two other officials of the Indiana Department of Corrections. Pursuant to defendants' motion, the district court dismissed plaintiff's complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Plaintiff appeals this dismissal and we reverse.

I. Factual Background

In reviewing a dismissal under Rule 12(b)(6), the factual allegations contained in the plaintiff's complaint must be taken as true and must be viewed, along with all reasonable inferences to be drawn therefrom, in the light most favorable to the plaintiff. Doe v. St. Joseph's Hospital, 788 F.2d 411, 414 (7th Cir.1986). The following discussion is therefore drawn directly from plaintiff's complaint.

Since May 1982, plaintiff has been serving a thirty-five year sentence for murder. She is a pre-operative transsexual suffering from gender dysphoria, a medically recognized psychological disorder. She has been chemically (although not surgically) castrated 3 as a result of approximately nine years of estrogen therapy under the supervision of physicians and has undergone surgical augmentation of her facial structure, breasts, and hips so as to alter her body shape to resemble that of a biological female. She has feminine mannerisms, wears makeup and feminine clothing and undergarments when permitted, considers herself to be a female, and in fact has been living as a female since the age of fourteen. 4

After being sentenced in 1982, plaintiff was transferred to the Department of Correction's Reception-Diagnostic Center for evaluation and classification. Although the medical examinations and evaluations conducted there supported a diagnosis of gender dysphoria, the consensus of the staff was to treat her as any other anatomical male. She was therefore assigned to the Indiana State Prison for commitment without a prescription or authorization for the use of hormone supplements.

Since the inception of her incarceration, plaintiff has been denied all medical treatment--chemical, psychiatric, or otherwise--for her gender dysphoria and related medical needs. The Medical Director at the Pendleton institution, Dr. Choi, has allegedly made humiliating remarks about plaintiff's need for estrogen and apparently once told her that "as long as she was in the Department of Corrections she would never receive the medication [estrogen] and that he would make sure of this." (Pl. Original Pro Se Complaint, Allegation I, Pl. App. 29). Plaintiff has suffered severe withdrawal symptoms as a result of the termination of estrogen therapy after nine years and has failed to receive any treatment for problems associated with silicone surgical implants.

Plaintiff has been confined in segregated "deadlock" in the protective custody units of the Indiana State Prison at Michigan City and the Pendleton Reformatory for periods of up to five and one-half months. While in the general prison population and in segregation, she alleges that she has been the victim of attempted and completed acts of violence and sexual assault. In

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addition, she claims that she has been subjected to harassment by prison officers and has been forced to strip in front of officers and other inmates.

Appearing pro se, plaintiff brought this Sec. 1983 action in November 1983. Counsel was appointed to represent plaintiff and an amended complaint was filed in May 1985. The complaint alleged violations of her rights under the First, Eighth, Ninth and Fourteenth Amendments of the Constitution and sought monetary, declaratory, and injunctive relief. The district court dismissed the complaint for failure to state a claim upon which relief could be granted. Fed.R.Civ.P. 12(b)(6). The court rejected plaintiff's claim for adequate medical care under the Eighth Amendment because it found that there was no "serious" medical need involved. It viewed the claim as a request for "elective medication" to maintain "a physical appearance and life style in order to satisfy [her] psychological belief." (Pl.App. 12, 14). The court also rejected plaintiff's conditions of confinement claim, concluding that protective custody was "a means of assuring the safe and efficient operation of a prison on a day-to-day basis." (Pl.App. 12). The court did not address plaintiff's allegations that she had been victimized by sexual assault, harassment, and invasions of privacy.

II. Medical Care

Plaintiff initially contends that the defendants' failure to provide any medical treatment for her gender dysphoria constitutes a violation of her right under the Eighth Amendment to adequate medical care. In reviewing the sufficiency of her claim, we apply the familiar standard set out in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80, that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

A state has an affirmative obligation under the Eighth Amendment "to provide persons in its custody with a medical care system that meets minimal standards of adequacy." Benson v. Cady, 761 F.2d 335, 339 (7th Cir.1985) (quoting Wellman v. Faulkner, 715 F.2d 269, 271 (7th Cir.1983), certiorari denied, 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885). However, not every claim by a prisoner alleging inadequate medical care states a constitutional violation. The Supreme Court has limited recovery under the Eighth Amendment to those cases in which a prisoner can establish "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251. Mere negligence on the part of a physician in diagnosing or treating a medical condition will not state a valid claim of medical mistreatment under the Eighth Amendment. Id. at 106, 97 S.Ct. at 292.

In dismissing plaintiff's Eighth Amendment claim, the district court concluded that gender dysphoria was not a "serious" medical need. Noting that the complaint presented no perilous or life-threatening situations, it instead characterized plaintiff's request for estrogen therapy as "elective medication" necessary only to maintain "a physical appearance and life style in order to satisfy [her] psychological belief." (Pl.App. 12, 14). In the court's view, the denial of hormone treatment could not, as a matter of law, constitute deliberate indifference to a serious medical need.

The defendants echo the district court's analysis on appeal, describing plaintiff's claim as a request for cosmetic treatment to promote and maintain her current life style and appearance and not as one for treatment of a medical condition. This argument ignores the fact that in reviewing a motion to dismiss, a court of appeals is obligated to take the plaintiff's allegations as true. Transsexualism has been recognized as a serious psychiatric disorder. In Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1083 n. 3 (7th Cir.1984), certiorari denied, 471 U.S. 1017, 105 S.Ct. 2023, 85 L.Ed.2d 304, this Court described transsexualism as:

a condition that exists when a physiologically normal person (i.e., not a hermaphrodite--a person whose sex is not

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clearly defined due to a congenital condition) experiences discomfort or discontent about nature's choice of his or her particular sex and prefers to be the other sex. This discomfort is generally accompanied by a desire to utilize hormonal, surgical, and civil procedures to allow the individual to live in his or her preferred sex role. The diagnosis is appropriate only if the discomfort has been continuous for at least two years, and is not due to another mental disorder, such as schizophrenia.... [S]ee generally American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Sec. 302.5x (3d ed. 1980); Edgerton, Langman, Schmidt & Sheppe, Psychological Considerations of Gender Reassignment Surgery, 9 Clinics in Plastic Surgery 355, 357 (1982); Comment, The Law and Transsexualism: A Faltering Response to a Conceptual Dilemma, 7 Conn.L.Rev. 288, 288 n. 1 (1975); Comment, Transsexualism, Sex Reassignment Surgery, and the Law, 56 Cornell L.Rev. 963, 963 n. 1 (1971). 5

Transsexualism is not voluntarily assumed and is not a matter of sexual preference. 6 Sommers v. Budget Marketing, Inc., 667 F.2d 748, 748 n. 2 (8th Cir.1982).

Other courts have recognized transsexualism as "a very complex medical and psychological problem." Pinneke v. Preisser, 623 F.2d 546, 549 (8th Cir.1980) (quoting Doe v. Minnesota Dep't of Public Welfare, 257 N.W.2d 816, 819 (Minn.1977)); see also Rush v. Parham, 440 F.Supp. 383 (N.D.Ga.1977), reversed on other grounds, 625 F.2d 1150 (5th Cir.1980); G.B. v. Lackner, 80 Cal.App.3d 64, 145 Cal.Rptr....

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