889 F.Supp.2d 190 (D.Mass. 2012), C. A. 00-12455-MLW, Kosilek v. Spencer

Docket Nº:C.A. 00-12455-MLW.
Citation:889 F.Supp.2d 190
Opinion Judge:WOLF, District Judge.
Party Name:Michelle L. KOSILEK, Plaintiff, v. Luis S. SPENCER, in his official capacity as Commissioner of the Massachusetts Department of Correction, Defendant.
Attorney:Frances S. Cohen, Jared A. Craft, Bingham McCutchen LLP, Joseph L. Sulman, Law Office of Joseph L. Sulman, Esq., Boston, MA, for Plaintiff. Joan T. Kennedy, Richard C. McFarland, Department of Correction, Boston, MA, for Defendant.
Case Date:September 04, 2012
Court:United States District Courts, 1st Circuit, District of Massachusetts

Page 190

889 F.Supp.2d 190 (D.Mass. 2012)

Michelle L. KOSILEK, Plaintiff,


Luis S. SPENCER, in his official capacity as Commissioner of the Massachusetts Department of Correction, Defendant.

C.A. No. 00-12455-MLW.

United States District Court, D. Massachusetts.

September 4, 2012

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Frances S. Cohen, Jared A. Craft, Bingham McCutchen LLP, Joseph L. Sulman, Law Office of Joseph L. Sulman, Esq., Boston, MA, for Plaintiff.

Joan T. Kennedy, Richard C. McFarland, Department of Correction, Boston, MA, for Defendant.


WOLF, District Judge.

A. Kosilek has a Gender Identity Disorder 213
B. Kosilek I 213
C. The Aftermath of Kosilek I 218
D. The Trial of Kosilek II 225
E. The Eighth Amendment Analysis 229
1. Kosilek has a Serious Medical Need 229
2. Sex Reassignment Surgery is the Only Adequate Treatment for Kosilek's Serious Medical Need 230
3. Kosilek Has Satisfied the Subjective Prong of the Deliberate Indifference Test 237
4. The Defendant's Stated Security Concerns are Pretextual and do not Justify Denying Kosilek Sex Reassignment Surgery 238
5. Defendant's Deliberate Indifference Will Continue and, Therefore, Kosilek is Entitled to a Narrowly-Tailored Injunction 247

I. SUMMARY This is an unusual case for an obvious reason and another that is less evident. This case is unusual because a transsexual prisoner, plaintiff Michelle Kosilek, seeks an unprecedented court order requiring that the defendant Commissioner of the Massachusetts Department of Correction (the " DOC" ) provide him with sex reassignment surgery to treat his major mental illness, severe gender identity disorder. This case is also unusual because until recently inmates suing for medical care have typically sought treatment that prison doctors were unwilling to prescribe. In this case, however, Kosilek is seeking the treatment that has been prescribed for him by the DOC's doctors as the only form of adequate medical care for his condition. Such cases have recently become more Page 197 common in Massachusetts because the DOC has repeatedly denied transsexual prisoners prescribed treatment for reasons that the courts have found to be improper. See Battista v. Clarke, 645 F.3d 449 (1st Cir.2011); Soneeya v. Spencer, 851 F.Supp.2d 228 (D.Mass.2012); Brugliera v. Comm'r of Mass. Dep't of Corr., No. 07-40323, 2009 U.S. Dist. LEXIS 131002 (D.Mass. Dec. 16, 2009); Kosilek v. Maloney, 221 F.Supp.2d 156 (D.Mass.2002) (" Kosilek I " ). Kosilek is serving a life sentence, without possibility of parole, for murdering his wife. Kosilek suffers from a gender identity disorder, which is recognized as a major mental illness by the medical community and by the courts. Kosilek is, therefore, a transsexual— a man who truly believes that he is a female cruelly trapped in a male body. This belief has caused Kosilek to suffer intense mental anguish. This anguish has caused Kosilek to attempt to castrate himself and to attempt twice to kill himself while incarcerated, once while he was taking the antidepressant Prozac. The Harry Benjamin Standards of Care (the " Standards of Care" ) are protocols used by qualified professionals in the United States to treat individuals suffering from gender identity disorders.1 According to the Standards of Care, psychotherapy with a qualified therapist is sufficient treatment for some individuals. In other cases psychotherapy and the administration of hormones provide adequate relief. There are, however, some cases in which sex reassignment surgery is medically necessary and appropriate. This fact that sex reassignment surgery is for some people medically necessary has recently become more widely recognized. For example, in 2010, the United States Tax Court held that the costs of feminizing hormones and sex reassignment surgery are for certain individuals tax deductible as forms of necessary " medical care" for a serious, debilitating condition that is sometimes associated with suicide and self-castration, rather than nondeductible expenses for " cosmetic" treatment. See O'Donnabhain v. Comm'r of Internal Revenue, 134 T.C. 34, 70, 76-77 (U.S.Tax Ct.2010). Similarly, in 2010, the Seventh Circuit held that a state statute prohibiting hormone therapy and sex reassignment surgery for any prisoner violated the Eighth Amendment because such forms of treatment could be medically necessary to treat some inmates adequately. See Fields v. Smith, 653 F.3d 550, 556 (7th Cir.2011). In the instant case, Kosilek alleges that his rights under the Eighth Amendment are being violated by the DOC's refusal to provide him with the sex reassignment surgery that, following the Standards of Care, the DOC's doctors have found to be the only adequate treatment for the severe gender identity disorder from which Kosilek suffers. Kosilek still severely suffers from this major mental illness despite the fact that he is receiving psychotherapy and female hormones. After a long period of pretense and prevarication, DOC Commissioner Kathleen Dennehy testified in 2006 that she understood and accepted the DOC doctors' view that Kosilek is at substantial risk of serious harm and that sex reassignment surgery is the only adequate treatment for his condition.2 However, she Page 198 claimed that providing such treatment would create insurmountable security problems and that she denied Kosilek sex reassignment surgery because of those security considerations. Kosilek has proven, however, that the Commissioner's purported security concerns are a pretext to mask the real reason for the decision to deny him sex reassignment surgery— a fear of controversy, criticism, ridicule, and scorn. Therefore, Kosilek has proven that the DOC is violating his rights under the Eighth Amendment. He has also established that this violation will continue if the court does not now order the DOC to provide the treatment its doctors have prescribed. Therefore, such an injunction is being issued. In summary, the reasons for these conclusions are as follows. The Eighth Amendment prohibits cruel and unusual punishment. The Supreme Court has explained that " [t]he Amendment embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency." Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (internal quotation omitted). Among other things, the Eighth Amendment does not permit the unnecessary infliction of pain on a prisoner, either intentionally or because of the deliberate indifference of the responsible prison official. Any such infliction of pain is deemed " wanton." The wanton infliction of pain on an inmate violates the Eighth Amendment. Prisoners have long been held to have a right to humane treatment, including a right to adequate care for their serious medical needs. It may seem strange that in the United States citizens do not generally have a constitutional right to adequate medical care, but the Eighth Amendment promises prisoners such care. The Supreme Court recently explained the reason for this distinction:

To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison's failure to provide sustenance for inmates may actually produce physical torture or a lingering death. Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.

Brown v. Plata, --- U.S. ----, 131 S.Ct. 1910, 1928, 179 L.Ed.2d 969 (2011) (internal quotations and citations omitted). Nevertheless, because the Eighth Amendment prohibits only certain punishments, to establish a violation when a prisoner's health is at issue, it is not sufficient for an inmate to prove only that he has not Page 199 received adequate medical care. Rather, he must also prove that the official responsible for his care has intentionally ignored a serious medical need or otherwise been deliberately indifferent to it. The deliberate indifference test has an objective and subjective prong. To satisfy the objective prong in a case involving medical care, a prisoner must show that he has a serious medical need. A serious medical need is one that involves a substantial risk of serious harm if it is not adequately treated. Typically, it is a need that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention. Adequate medical care requires treatment by qualified personnel, who provide services that are of a quality acceptable when measured by prudent professional standards in the community. Adequate care is tailored to an inmate's particular medical needs and is based on medical considerations. Absent legitimate countervailing penological considerations, adequate care addresses the cause of the person's suffering rather than merely the symptoms. As the Seventh Circuit recently wrote in finding that a statute prohibiting hormones and sex reassignment surgery for all prisoners violated the Eighth Amendment:


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