Farmer v. Moritsugu

• Decision Date: 18 December 1998
• Docket Number: No. 98-5087,98-5087
• Parties: Dee FARMER, Appellee, v. Kenneth MORITSUGU, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 610

163 F.3d 610

333 U.S.App.D.C. 319

Dee FARMER, Appellee, v. Kenneth MORITSUGU, Appellant.

No. 98-5087.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 19, 1998.

Decided Dec. 18, 1998.

Appeal from the United States District Court for the District of Columbia (No. 92cv01690).

Stacy M. Ludwig, Assistant U.S. Attorney, argued the cause for appellant. With her on the briefs were Wilma A. Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Laura K. McNally argued the cause for appellee. With her on the brief was James J. Sandman.

Before: EDWARDS, Chief Judge, WILLIAMS and RANDOLPH, Circuit Judges.

PER CURIAM:

This case presents the question whether the Medical Director of the Bureau of Prisons ("BOP") can be held personally liable under the Eighth Amendment for the alleged failure to treat a transsexual inmate. Appellee Dee Deidre Farmer ("Farmer"), a transsexual who has been incarcerated in various BOP facilities since 1986, alleges that appellant Kenneth Moritsugu ("Moritsugu"), the BOP's Medical Director, exhibited deliberate indifference to her serious medical needs by failing to ensure that she received treatment for her condition. Moritsugu asserts qualified immunity, arguing that he adhered at all times to the BOP's concededly constitutional medical policy, which invests him with only a very limited role in decisions concerning the diagnosis and care of individual patients in local BOP institutions. We agree that Moritsugu was not the person to whom Farmer's treatment requests were appropriately addressed. We also find that Farmer failed to demonstrate a specific need for treatment, and, therefore, that Moritsugu's response to Farmer's demands could not have constituted deliberate indifference to her medical needs. Accordingly, we reverse the District Court's denial of qualified immunity.

I. BACKGROUND

A. Farmer's Efforts to Obtain Treatment

Transsexualism is a gender identity disorder, the sufferers of which believe that they are "cruelly imprisoned within a body incompatible with their real gender identity." THE MERCK MANUAL OF MEDICAL INFORMATION 418 (1997). The disorder is commonly accompanied by a desire to change one's anatomic sexual features to conform physically with one's perception of self. To relieve this gender discomfort, transsexuals may pursue some combination of hormone therapy, surgery, and psychological counseling. They may also choose to live in their preferred gender role by dressing, naming, and conducting themselves in conformity with that gender. See id. at 418-19.

Farmer is a pre-operative male-to-female transsexual, i.e., she identifies herself as a woman although she is biologically male. For several years prior to her incarceration, Farmer lived as a woman in her dress and conduct. She also received hormone therapy and silicone breast injections. Farmer has never undergone sex re-assignment surgery. However, before her imprisonment, she had an unsuccessful "black market" operation to remove her testicles, and, while in prison, she attempted to perform self-castration.

Since at least 1991, Farmer has actively sought treatment for her transsexualism. She has lodged administrative complaints within the institutions in which she has been incarcerated. She has also initiated multiple lawsuits claiming violations of her constitutional rights arising from her conditions of imprisonment and lack of medical treatment. And, most relevant to the instant case, she has written numerous letters to BOP officials, including Moritsugu, to inform them that she desired, but was not receiving, treatment for her transsexualism. See Letters from Farmer to Prison Officials, reprinted in Joint Appendix ("J.A.") 66-80. In these letters, Farmer has claimed that, because her condition has worsened during the course of her confinement, she is entitled to some form of treatment. Farmer claims that her pleas for assistance largely have gone unanswered; on this score, she points out that she has received only intermittent counseling from the BOP during her incarceration.

The BOP's general health care mission is to provide essential medical care, defined as care that is either medically mandatory or presently medically necessary in the clinical judgment of health care professionals. See FEDERAL BUREAU OF PRISONS, U.S. DEP'T OF JUSTICE, PROGRAM STATEMENT, No. 6000.04 (Dec. 15, 1994) ("HEALTH SERVICES MANUAL"), , Ch. 1, § 1, reprinted in J.A. 61. The term "medically mandatory" applies to "cases in which urgent intervention is required." Id. The term "presently medically necessary" describes treatment "without which an inmate could not be maintained without significant risk of either further serious deterioration of his/her condition or significant reduction of the chance of possible repair after release, or without significant pain or discomfort." Id. In addition to this broad mission statement, the BOP's medical policy includes a provision specifically applicable to the treatment of transsexualism, which declares:

It is the policy of the [BOP] to maintain a transsexual inmate at the level of change existing upon admission. Should the Clinical Director determine that either progressive or regressive treatment changes are indicated, the Medical Director must approve these prior to implementation. The use of hormones to maintain secondary sexual characteristics may be continued at approximately the same levels as prior to incarceration (with appropriate documentation from community physicians/hospitals) and with the Medical Director's approval.

HEALTH SERVICES MANUAL, Ch. 5, § 14, reprinted in J.A. 64.

The present case centers on the course of predominantly unanswered correspondence by which Farmer sought Moritsugu's intervention in her treatment program. Moritsugu, for his part, acknowledges receiving one letter from Farmer. In that letter, dated July 30, 1992, Farmer apparently requested some combination of treatment--hormones, castration, and/or psychotherapy--for her transsexualism. That letter, in turn, prompted Moritsugu's response of August 11, 1992. See Letter from Moritsugu to Farmer (Aug. 11, 1992), reprinted in J.A. 52-53.

In his letter to Farmer, Moritsugu recited the BOP's general medical policy, as described above. He then proceeded to address briefly each potential form of treatment for transsexualism. As to hormones, Moritsugu stated that Farmer was not on hormones when she arrived in the federal prison system, and that he had not received a request for such treatment from the medical personnel of the facility in which she was incarcerated. As to castration, Moritsugu again emphasized that he had not received a recommendation for such treatment from the relevant medical personnel, and added that he would only consider authorizing castration if it was clinically necessary, rather than simply "a cosmetic procedure or a procedure to further transsexual change." J.A. 52. Finally, as to psychotherapy, Moritsugu observed that Farmer had received counseling, but that her transsexualism was a "general emotional state," which did "not present a specific mental health problem that mental health personnel [could] isolate for treatment." Id. at 52-53. He concluded by stating that mental health personnel were available to assist Farmer if she had "specific needs." Id. at 53.

Farmer claims to have written Moritsugu on four subsequent occasions, requesting that he reconsider his decision. Moritsugu, however, does not acknowledge receiving, and did not respond to, any of these alleged letters.

B. Farmer's Lawsuit

On May 15, 1996, Farmer filed the instant lawsuit in District Court, naming Kathleen Hawk, in her official capacity as Director of the BOP, and Moritsugu, in both his official and individual capacities. Farmer's complaint sought damages against Moritsugu pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging, inter alia, that Moritsugu violated her Eighth Amendment rights by failing "to promulgate any policy which would have required the BOP medical staff to provide [her] with treatment for transsexualism," and by failing to "direct the BOP medical staff to provide [her] with treatment for transsexualism." Second Amended Complaint pp 53-54, reprinted in J.A. 37.

Defendants moved to dismiss or, in the alternative, for summary judgment, arguing, inter alia, that Moritsugu was entitled to qualified immunity on the claim for damages asserted against him in his individual capacity. The District Court granted in part and denied in part defendants' motion. See Farmer v. Hawk, 991 F.Supp. 19, 28 (D.D.C.1998). As relevant to the present action, the trial court first determined that, at the time of Moritsugu's letter to Farmer, it was clearly established that transsexualism was a serious medical condition entitling Farmer to some form of treatment. See id. at 25-27. With regard to Moritsugu's alleged failure to promulgate a new policy for treatment of transsexuals, the court found that the BOP's current policy is constitutional on its face, and, therefore, that Moritsugu's failure to issue a new policy could not have been deliberately indifferent. See id. at 27. However, with regard to Moritsugu's alleged failure to enforce adequately the existing policy to secure treatment for Farmer, the trial court concluded that Moritsugu's response to Farmer's requests "could very possibly have constituted deliberate indifference," because his letter "acknowledge[d] and sanction[ed] the withholding of any treatment from Farmer." Id. at 28. Thus, the court held that Moritsugu was not entitled to immunity on this claim. See id. This appeal, which concerns solely the question of Moritsugu's liability in his individual capacity, followed.

II. ANALYSIS

A. Qualified Immunity Principles

It is well-established that qualified immunity shields government officials from...