Farmer v. Brennan, 94-3787

• Decision Date: 26 April 1996
• Docket Number: No. 94-3787,94-3787
• Citation: 81 F.3d 1444
• Parties: Dee FARMER, Plaintiff-Appellant, v. Edward BRENNAN, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1444

81 F.3d 1444

Dee FARMER, Plaintiff-Appellant, v. Edward BRENNAN, et al., Defendants-Appellees.

No. 94-3787.

United States Court of Appeals Seventh Circuit.

Argued Sept. 27, 1995.

Decided April 26, 1996.

Appeal from the United States District Court for the Western District of Wisconsin. No. 91 C 716--John C. Shabaz, Chief Judge.

Michael J. Gonring (argued), Virginia H. Jones, Quarles & Brady, Milwaukee, WI, Jeffrey F. Orchard, Washington, DC, for Plaintiff-Appellant.

Christa A. Reisterer, Leslie Herje (argued), Office of the United States Attorney, Madison, WI, for Edward J. Brennan.

Christa A. Reisterer, Office of the United States Attorney, Madison, WI, for Dennis Kurzydlo, Calvin R. Edwards, Larry E. DuBois, N.W. Smith and J. Michael Quinlan.

Before FLAUM, EASTERBROOK, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

In this case, we return to Dee Farmer's suit against a number of federal prison officials claiming violations of the Eighth Amendment. Farmer, a pre-operative transsexual who is still biologically male, brought a pro se action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), in 1991, claiming that the defendants had violated her ¹ Eighth Amendment rights when they transferred her from the Federal Correctional Institution in Oxford, Wisconsin, to the U.S. Penitentiary in Terre Haute, Indiana. After the district court dismissed the case and this Court affirmed in an unpublished order, the Supreme Court granted certiorari to decide whether the correct standard for Eighth Amendment liability had been applied. In Farmer v. Brennan, --- U.S. ----, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), the Court clarified the test for liability and remanded the case for further proceedings. On remand, the district court promptly dismissed again, ruling 92 days after the case returned to it. Because the court acted so quickly, without giving Farmer a meaningful opportunity to respond to the Supreme Court's action, we remand for further proceedings.

I

Farmer is serving a twenty year federal sentence for credit card fraud, which was imposed in 1986 when she was 18 years old. She has been diagnosed by medical personnel at the Bureau of Prisons as a transsexual, a condition defined by the American Medical Association's 1989 Encyclopedia of Medicine as a "rare psychiatric disorder in which a person feels persistently uncomfortable about his or her anatomical sex." Transsexuals typically seek medical treatments to change their physical sexual traits. Farmer is no exception. For several years prior to her conviction, she wore women's clothing, underwent estrogen therapy, and received silicone breast implants. At one point, she apparently had an unsuccessful testicle-removal operation. We express no view here on whether transsexualism is properly categorized as a "disorder." It is enough for present purposes to note that all parties agree that Farmer in fact was and is a transsexual and that she projects feminine characteristics.

Over the years since her conviction, Farmer has served time in a number of federal prisons, including the U.S. Medical Center for Federal Prisoners in Springfield, Missouri, the U.S. Penitentiary in Lewisburg, Pennsylvania, the Federal Correctional Institution in Petersburg, West Virginia, the Federal Correctional Institution in Oxford, Wisconsin ("FCI-Oxford"), and the U.S. Penitentiary in Terre Haute, Indiana ("USP-Terre Haute"). This case concerns her March 9, 1989, transfer from FCI-Oxford to USP-Terre Haute. In a complaint filed on August 20, 1991, and amended on December 13, 1991, Farmer claimed that the defendant prison officials knew that, because of her transsexualism and the violent environment at USP-Terre Haute, she would be in physical danger and particularly vulnerable to sexual attack if the transfer took place. In the face of this knowledge, the defendants either transferred her to USP-Terre Haute or placed her in its general population. She alleged that, on April 1, 1989, less than a month after the transfer, she was raped and beaten by an unidentified inmate in her cell at USP-Terre Haute. Based on these events, Farmer claimed that the defendants were deliberately indifferent to her safety and thus violated her Eighth Amendment rights. She sought compensatory and punitive damages and an injunction barring future confinement in any "penitentiary" (as opposed to other types of correctional facilities).

The complaint named six defendants: J. Michael Quinlan, then the Director of the Federal Bureau of Prisons ("BP"), and Calvin Edwards, Regional Director for the BP, in their official capacities; Edward Brennan, the Warden of FCI-Oxford, Dennis Kurzydlo, a case manager at FCI-Oxford, Larry E. DuBois, a former Regional Director of the BP, and N.W. Smith, the former Correctional Services Administrator for the BP, all in their individual and official capacities.

Between the August 1991 original complaint and the December 1991 amended complaint, Farmer filed several discovery requests. On September 23, she served a Request for Production of Documents on Brennan and Interrogatories on Kurzydlo. On December 11, she served another Request for Production of Documents on Quinlan. On November 1, Kurzydlo answered the interrogatories, and Brennan responded to the document request. Brennan turned over documents related to Farmer's transfer and those related to her placement in a penitentiary environment. Although he identified documents discussing Farmer's transsexualism, he refused to release these documents to her for fear that the documents might be seen by others in the prison environment. The December 11 document request, however, went unanswered even after the district court denied the defendants' motion to dismiss on December 24, 1991.

Farmer then filed a motion to compel discovery, which the district court partially granted on January 24, 1992. The court focussed specifically on the September 23 request, in which she had asked for "any and all documents in the plaintiff's Central or Medical File that refer or otherwise indicate her to have a gender disorder or problem, including transsexualism...." The court permitted Farmer to review documents listed by the defendants, and upon further request, it agreed to require the defendants to produce documents for in camera review. Farmer followed up with a request for review of additional documents on March 4, 1992, and after its in camera review, the court denied her motion to compel. Again the December 11 Request went unanswered.

Meanwhile, on February 18, 1992, the defendants filed a motion for summary judgment supported by affidavits. Farmer in turn filed a motion under Rule 56(f) on March 8. ² She appears to have thought that the motion would serve as a vehicle to compel responses to the December 1991 discovery requests. In any event, she indicated that she needed further discovery in order to respond to the defendants' summary judgment motion. She also filed her own motion for summary judgment and an opposition to defendants' motion, supported by the documents she had been able to collect. The defendants then followed up on March 17, 1992, with a motion for a protective order against further discovery on the ground that it would be improper in light of the defense of qualified immunity they had raised in the summary judgment motion.

On March 23, 1992, the district court granted the defendants' motions for summary judgment and for the protective order. It denied Farmer's Rule 56(f) motion. Farmer had mistakenly indicated in the motion that the responses to her December 11, 1991, Request for Production were due on March 14 (why we are not sure), which was after the date the court had set for a response to the summary judgment motion. Thus the court concluded that responses to the Rule 56(f) motion could be of no help in resolving the summary judgment motions because they would be untimely. Upon Farmer's appeal to this Court, the district court's judgment was summarily affirmed. The Supreme Court then vacated that decision and remanded for further proceedings.

The Supreme Court began by reiterating the two requirements for a finding that a prison official has violated the Eighth Amendment: "[f]irst, the deprivation alleged must be, objectively, sufficiently serious," and second, "a prison official must have [had] a sufficiently culpable state of mind," which in the prison condition cases means "deliberate indifference to inmate health or safety." --- U.S. at ----, 114 S.Ct. at 1977 (internal quotations omitted). The Court then clarified the term "deliberate indifference," holding:

[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.

Id. at ----, 114 S.Ct. at 1979. The Court underscored the fact that it was adopting a subjective test, in contrast to the objective standard of negligence articulated in cases like Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). It dismissed Farmer's concern that a subjective test would leave prison officials free to ignore obvious dangers to inmates with this observation:

Under the test we adopt today, an Eighth Amendment claimant need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.... Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may...