Farmer v. Haas, 91-2484

Citation990 F.2d 319
Decision Date02 April 1993
Docket NumberNo. 91-2484,91-2484
PartiesDee FARMER, Plaintiff-Appellant, v. Richard HAAS, Edward J. Brennan, and L.E. Dubois, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Darcy J. Bogenrief (argued), Winston & Strawn, Chicago, IL, for plaintiff-appellant.

Mark A. Cameli, Asst. U.S. Atty., Madison, WI (argued), for defendants-appellees.

Before POSNER and EASTERBROOK, Circuit Judges, and PELL, Senior Circuit Judge.

POSNER, Circuit Judge.

Dee Farmer, a federal prison inmate, brought this suit for damages against three members of the prison staff, charging deliberate indifference (in violation of the cruel and unusual punishments clause of the Eighth Amendment) to her need for medical and psychiatric treatment for the condition known as transsexualism (gender dysphoria). After this court in an unpublished order reversed the grant of summary judgment for the defendants, the case was tried for two days before a jury, which brought in a verdict for the defendants, precipitating this appeal.

Farmer, who is now 27 years old, is serving a long sentence for participation in an elaborate credit card fraud. She (the defendants say "he," but Farmer prefers the female pronoun and we shall respect her preference) is a transsexual. A transsexual is a person who considers himself to be of the male gender although he has the female sexual organs, or, more commonly, as in Farmer's case, considers herself to be of the female gender but has the male sexual organs. The disjunction between sexual identity and sexual organs is a source of acute psychological suffering that can, in some cases anyway, be cured or at least alleviated by sex reassignment--the complex of procedures loosely referred to as "a sex-change operation." Anne Bolin, In Search of Eve: Transsexual Rites of Passage (1988); Erwin K. Koranyi, Transsexuality in the Male: The Spectrum of Gender Dysphoria (1980); American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders § 302.50 (3d ed. 1987); "Transsexualism," in American Medical Association, Encyclopedia of Medicine 1006 (Charles B. Clayman ed. 1989). There is a nascent jurisprudence of transsexualism, illustrated by Americans With Disabilities Act, 42 U.S.C. § 12211(b)(1); Meriwether v. Faulkner, 821 F.2d 408 (7th Cir.1987); Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir.1984); White v. Farrier, 849 F.2d 322 (8th Cir.1988); Supre v. Ricketts, 792 F.2d 958 (10th Cir.1986); Phillips v. Michigan Dept. of Corrections, 731 F.Supp. 792 (W.D.Mich.1990), aff'd without opinion, 932 F.2d 969 (6th Cir.1991); Crosby v. Reynolds, 763 F.Supp. 666 (D.Me.1991), and Doe v. McConn, 489 F.Supp. 76 (S.D.Tex.1980).

Beginning at the age of 14, Farmer underwent estrogen therapy. Silicone breast implants followed. The usual next step would have been an operation to remove the male sexual organs and create, from penile tissue, a simulacrum of a vagina. However, for reasons that are unclear Farmer did not have the operation--at least not one performed by a surgeon. Farmer did have what the briefs call a "black market" operation to remove her testicles, but, odd as it may seem, the operation was unsuccessful. Yet, while retaining the male sexual organs, Farmer lived as a woman for five years before being imprisoned. The practice of the federal prison authorities, we were told at argument, is to incarcerate persons who have completed sexual reassignment with prisoners of the transsexual's new gender, but to incarcerate persons who have not completed it with prisoners of the transsexual's original gender. So Farmer was put in with male prisoners--but without incident, in happy contrast to Meriwether v. Faulkner, supra. At the trial, Farmer wore women's clothing.

Farmer claims that the defendants refused her repeated requests for medical and psychiatric treatment. Eventually she was transferred to another prison, where she is receiving psychiatric treatment. For reasons that are unclear, she has been advised against continuing with estrogen therapy; and her male organs have yet to be removed. The issue in the trial was the denial of any treatment, not of some specific treatment, for Farmer's condition. She relied heavily at trial on written requests for treatment that were found in the defendants' files; the defendants countered with evidence that the requests were forgeries. Farmer called as an expert witness a nun to explain to the jury the emotional harm that a transsexual could suffer if denied medical or psychiatric assistance. The defendants did not and do not deny that transsexualism is not a frivolous "life style" choice but a genuine psychiatric disorder for which a prisoner is entitled to receive medical or psychiatric treatment.

The only question raised by the appeal is whether the district judge should have granted Farmer's motion to request a lawyer to represent her at the trial. 28 U.S.C. § 1915(d). Had the motion been made after Jackson v. County of Maclean, 953 F.2d 1070, 1072-73 (7th Cir.1992), the judge would have been required to deny it out of hand unless Farmer had made some effort to secure a lawyer in the private market. Her suit sought damages, and if it had merit she might be able to retain a tort lawyer to handle it on a contingent basis. That would be a preferable course to a judge's twisting some lawyer's arm to induce him to take a case that he would rather not take. If the plaintiff were unable to secure a lawyer in the private market, this might mean the suit had no merit, although alternatively it might mean that the plaintiff lacked the necessary information to obtain a suitable lawyer.

Jackson establishes a sensible threshold requirement, but one inapplicable here because Farmer could not know that it was a requirement, so no significance can be attached to her failure to seek (for all we know she did seek) private counsel. Id. at 1073. It is true that the statute itself confines the power of request to cases in which the litigant is "unable to employ counsel" and that the Second Circuit had, long before Jackson, interpreted this to mean that the litigant must show that he tried and failed to find a lawyer on his own. Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir.1986). See also In re Lane, 801 F.2d 1040, 1043 (8th Cir.1986). Until Jackson, however, our court had assumed that "unable to employ counsel" meant indigent, though an indigent might be able to obtain a lawyer on a contingent-fee basis if he had a substantial claim for money damages.

So the parties, disregarding Jackson, have argued the pros and cons of Farmer's request for counsel under the five-fold test that a panel of this court adopted in Maclin v. Freake, 650 F.2d 885 (7th Cir.1981) (per curiam). Since Maclin was decided, however, we have become more wary about multifactor tests, see, e.g., Prussner v. United States, 896 F.2d 218, 224 (7th Cir.1990) (en banc); Kenosha Liquor Co. v. Heublein, Inc., 895 F.2d 418, 419 (7th Cir.1990); Stevens v. Tillman, 855 F.2d 394, 399 (7th Cir.1988), and, as commonly happens, the multiple factors of Maclin v. Freake collapse upon inspection. The first factor is whether the plaintiff's claim for relief has some merit--is "colorable," as lawyers like to say. Well, if the plaintiff doesn't even have a colorable claim, the case should be dismissed out of hand. There is no need to worry about counsel. The second factor is the plaintiff's ability to investigate the facts without the assistance of counsel and is actually an aspect of the third factor, the complexity of the evidence. Evidence must be obtained, and it must be presented. The fourth factor is the plaintiff's ability to represent himself and the fifth the difficulty of the legal issues. Obviously the fourth factor is dependent on the second and third (which are different stages of the same procedure), and also on the fifth because capabilities are relative to some task. The simpler the case, the less intelligent or experienced the plaintiff need be to handle it without the assistance of counsel.

Jackson shows that the...

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