Long v. Nix

Decision Date31 January 1995
Docket NumberCiv. No. 4-93-CV-20025.
Citation877 F. Supp. 1358
PartiesMerlin C. LONG, Plaintiff, v. Crispus C. NIX; Paul W. Grossheim; Sally Chandler Halford; Thomas Hundley; and Paul W. Loeffelholz, Defendants.
CourtU.S. District Court — Southern District of Iowa

COPYRIGHT MATERIAL OMITTED

John Whiston, Sean McGrevey, and Farhan Younus, for plaintiff.

William Hill, Asst. Atty. Gen., for defendants.

OPINION & JUDGMENT

BREMER, United States Magistrate Judge.

Plaintiff Merlin C. Long (Long) brings this civil rights action pursuant to 42 U.S.C. § 1983. Long is an inmate serving a life sentence at Iowa State Penitentiary (ISP). Plaintiff prefers to be addressed as Merlene and would like to be referred to as a female. However, to avoid confusion, the Court will refer to Long as a male. For example, it would be difficult to explain how "she" wishes to crossdress as a woman. Defendants are Iowa State Penitentiary (ISP) Warden Thomas Hundley; Crispus Nix, ISP's former warden; Sally Chandler Halford, the director of the Department of Corrections (DOC); Paul Grossheim, the former director of the DOC (now deceased); and Dr. Paul Loeffelholz, M.D., the DOC medical director.

Long alleges that defendants violated his Eighth Amendment right to be free from cruel and unusual punishment by refusing to provide appropriate living conditions and medical treatment. Long claims that defendants violated his Fourteenth Amendment due process rights by refusing to accommodate his gender identity disorder. Long seeks money damages and a declaratory judgment. Long also seeks injunctive relief requiring defendants to (1) provide adequate medical care for his gender identity problems, (2) place him in appropriate living conditions so that his right to privacy is protected, and (3) appropriately classify him. Defendants deny Long's claims and assert the defense of qualified immunity.

The parties consented to proceed before the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The trial took place on October 27, 1994. Attorney John Whiston, with law student interns Sean McGrevey and Farhan Younus, represented Long. Assistant Attorney General William A. Hill represented defendants. Long filed his post-trial brief November 16, 1994. This matter is fully submitted.

I. FINDINGS OF FACT

Merlin Long is a 61 year old man with a gender identity disorder.1 He has crossdressed since an early age. In 1964, Merlin Long, who was convicted of first degree murder, began serving his life sentence at ISP.2

Long reported to ISP in women's clothes and make-up (or in "full drag"), which the officials let him keep but not wear. Finally, ISP officials did allow Long to wear women's clothes. Long testified that he wore 3-inch fake fingernails, earrings, garter belts, hose, and teddies. He sometimes worked in the visitor's room dressed as a woman. Long claims to have realized that he was a woman at heart in 1965 or 1966.

In 1981, the ISP administration rescinded Long's privilege to wear women's clothing in response to a complaint by a parole board member. This occurred 17 years after the commencement of Long's sentence, and six months before a major riot resulting in significant changes in the operation of ISP. Since that time Long has worn standard male prisoner attire, which after the 1981 riot consists primarily of blue jeans and a blue work shirt. Long tries to "feminize" his features by plucking his eyebrows, lining his eyes with writing pencils, and by rouging his cheeks with chalk. Within ISP restrictions, Long tries to make his state-issued prison garments look feminine. Hundreds of times, Long has asked for and prison officials have denied, permission to receive and wear women's clothing and make-up. Long has repeatedly requested medical therapy and surgical sexual transformation. He claims to have entertained thoughts of self castration; however, he has not mutilated himself, nor has he been depressed to the point of attempting suicide.

Long wishes to receive hormone therapy. In 1981, Long first thought seriously about obtaining sex reassignment therapy or surgery and filed a civil action requesting a sex change. Long was aware that the surgery would involve removing his genitalia. The litigation was not pursued. In 1982, upon Long's request, officials transferred Long to a maximum security facility at the Missouri Department of Corrections where he says he was permitted to dress as a woman at all times. In 1986, Long returned to ISP where he has resided in protective custody and general population.

Defendants maintain that for security reasons they cannot accommodate Long's desire to wear women's clothing and undergarments. Acting Warden Hedgepeth testified at trial that permitting Long to crossdress would be contrary to prison policy, draw attention to Long's uniqueness, allow Long to broadcast his sexual availability, and invite sexual assault from other inmates. Defendants offered no testimony to indicate that Long has been sexually assaulted or harassed in the last ten years.3 Long claims to have been celibate for approximately ten years due to fear of Acquired Immune Deficiency Syndrome (AIDS) transmission.

Long proposed some ideas at trial as to how defendants might accommodate his desire to crossdress: transfer him to a prison in a state such as Missouri, which allowed him to crossdress and reportedly houses gender dysphorics in their own wing; transfer him to the Iowa Women's Correctional Facility, which houses only women; or permit him to wear women's undergarments in his cell. Long argues that his crossdressing would not present any security problems. He points out that his preferred sexual identity is wellknown throughout ISP and that, thus, there is not much more he could do to telegraph his "differentness" or sexual availability. Long stated at trial that he does not fear sexual attack by inmates as he is 61 years old.

The health care professionals who examined Long to diagnose his mental disorder differ as to treatment Long should receive. Dr. Walter O. Bockting, Ph.D. testified as plaintiff's expert; Dr. Paul W. Loeffelholz, M.D., Mr. Kazam Hassan, and Mr. Louis L. Gustilo testified on behalf of defendants. Dr. Bockting, a licensed psychologist who works on the Program in Human Sexuality at the University of Minnesota Medical School Department of Family Practice and Community Health, specializes in the diagnosis and treatment of patients with gender identity disorders. Dr. Bockting examined and extensively tested Long in 1993. He found that Long's crossdressing has developed into intense gender dysphoria. Dr. Bockting suggests that Long needs treatment for despair resulting from his inability to crossdress and the obsessive-compulsive aspects of his personality. Dr. Bockting thinks that Long suffers from depression and anxiety; he believes that tranquilizers will relieve Long's depression.4 Dr. Bockting recommends that in the event the tranquilizers prove ineffective, prison staff should provide Long limited opportunities to express his transgender identity and relieve stress through crossdressing and wearing make-up.

Dr. Bockting recognizes that Long's other emotional problems could interfere with effective treatment or relief for Long's gender identity disorder. Dr. Bockting's interpretation of Long's MMPI-2 psychological test results indicates that Long is "an individual who may be demanding, rebellious, hostile, aggressive, antisocial, impulsive, exhibitionistic, and promiscuous." Dr. Bockting reported that "it is likely that underneath all of this are deep feelings of insecurity and emotional withdrawal rooted in family of origin dysfunction." Dr. Bockting noted in his report that a person with Long's profile may be "highly resistant to psychological treatment."

Annual psychological evaluation reports by ISP staff indicate that Long has in fact been resistant to treatment. A report completed in 1990 shows that Long's interview was brief and unproductive. Long "presented himself in a verbally abusive and abrasive manner. He was hostile and belligerent. He answered no question in a direct manner. He ... asked why he should ... cooperate with the evaluator." Long indicated that he would not see the Parole Board that year. Long's 1991 Evaluation shows that while he was fairly congenial, direct, and open, he harbored negative feelings and attitudes toward the prison administration. He expressed the belief that due to his sexual identity administrative staff and prison officials harassed and discriminated against him. He stated that his attitude would "not change for the better until he is given what he deserves, for example, transfer to minimum custody...."

In 1992, it was reported that while Long was scheduled to see the Parole Board for his annual review, he had no intention of keeping this commitment. In 1993, Long again indicated that he would not participate in a psychological interview for the Parole Board's purposes. The evaluator noted: "due to Long's unwillingness to participate in this interview, no meaningful psychological report is submitted." In 1994, Long declined to be interviewed for his annual psychological evaluation. Long explained that he is apprehensive about meeting with ISP staff members because they are unsympathetic and because he thinks it is unlikely that he will be paroled.

Dr. Bockting does not recommend hormone therapy or surgical transformation of Long's penis into a vagina. He provides in his evaluation:

As far as hormonal or surgical sex reassignment ... Mr. Long currently does not meet the minimal requirements that would make him eligible.... The obsessive-compulsive features of his sexuality and his antisocial personality disorder would need to be adequately managed first.

Dr. Bockting testified that Long also suffers in part from paraphilia (a sexual attraction to "a particular object or subject that is unusual")5 and transvestic fetishism ("a sexual...

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5 cases
  • Oldham v. Chandler-Halford
    • United States
    • U.S. District Court — Northern District of Iowa
    • February 21, 1995
  • Brown v. Zavaras, 94-1537
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • August 18, 1995
    ...have reached the same conclusion. Farmer, 990 F.2d at 321; White, 849 F.2d at 327-28; Meriwether, 821 F.2d at 414; Long v. Nix, 877 F.Supp. 1358, 1364 (S.D.Iowa 1995); see also Connie Mayer, Survey of Case Law Establishing Constitutional Minima for the Provision of Mental Health Services to......
  • Zelaya v. Las Vegas Metro. Police Dep't, 2:13-cv-01181-JAD-CWH
    • United States
    • U.S. District Court — District of Nevada
    • February 19, 2016
    ...305 F. App'x 751, 754 (2d Cir. 2009) ("We have never held that mental anxiety is a serious medical need . . ."); Long v. Nix, 877 F. Supp. 1358, 1366 (S.D. Iowa 1995) aff'd, 86 F.3d 761 (8th Cir. 1996) ("The Court finds that this anxiety is not a serious medical need."). 128. ECF 83 at 13. ......
  • Long v. Nix
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • July 15, 1996
    ...indifferent to that need, and (3) the defendants were entitled to qualified immunity from Long's claim for damages. Long v. Nix, 877 F.Supp. 1358, 1365-67 (S.D.Iowa 1995). Long timely appeals from the judgment of the District Court, and we Long began his stay at ISP in 1964. He arrived in f......
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