Kosilek v. Maloney

• Decision Date: 28 August 2002
• Docket Number: No. CIV.A.92-12820-MLW.,CIV.A.92-12820-MLW.
• Citation: 221 F.Supp.2d 156
• Parties: Michelle KOSILEK, Plaintiff, v. Michael T. MALONEY, Defendant.
• Court: U.S. District Court — District of Massachusetts

221 F.Supp.2d 156

Michelle KOSILEK, Plaintiff, v. Michael T. MALONEY, Defendant.

No. CIV.A.92-12820-MLW.

United States District Court, D. Massachusetts.

August 28, 2002.

COPYRIGHT MATERIAL OMITTED

Michelle Kosilek, M.C.I. Norfolk, Norfolk, MA, pro se.

Jeffrey Jackson Pyle, Hill & Barlow, P.C., Frances S. Cohen, Jennifer L. Chiasson, Hill & Barlow, Boston, MA, for plaintiff.

Michael Franco, Law Offices of Beauregard & Burke, Philip N. Beauregard, Beauregard & Burke, New Bedford, MA, Alyson R. Ross, Borders & Ross, New Bedford, MA, Beverly R. Roby, Attorney General's Office, Richard C. McFarland, Department of Correction, Legal Division, Mary C. Firo-Barteryan, Department of Correction, Legal Division, Boston, MA, Herbert C. Hanson, Department of Correction, Boston, MA, for Defendants.

OPINION

WOLF, District Judge.

I. SUMMARY

Plaintiff Michelle Kosilek is serving a life sentence, without the possibility of parole, for murdering his wife. Kosilek is also suffering from a severe form of a rare, medically recognized, major mental illness — gender identity disorder ("GID"). Kosilek is a transsexual. Since at least age three, Kosilek has believed that he is actually a female who has been cruelly trapped in a male's body.¹ This belief has caused Kosilek to suffer constant mental anguish and, at times, abuse. While incarcerated, it has also caused Kosilek to attempt twice to kill himself, and to try to castrate himself as well.

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. 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 female hormones provide adequate relief. There are, however, some cases in which sex reassignment surgery is medically necessary and appropriate.

Since being incarcerated in 1990, Kosilek has sought but not received any of the forms of treatment described in the Standards of Care. In 1992, Kosilek filed a pro se lawsuit, pursuant to 42 U.S.C. § 1983, against the Sheriff of Bristol County, David R. Nelson, and others. Kosilek generally alleged that he was being denied adequate medical care for his serious medical need in violation of the Eighth Amendment of the United States Constitution. Kosilek sought both damages and an injunction requiring that he be provided sex reassignment surgery. After his conviction and transfer to the Massachusetts Department of Corrections (the "DOC") in 1992, Kosilek amended his complaint to seek the same relief from the DOC.

Defendant Michael Maloney became the Commissioner of the DOC in 1997. In 1999, he became a defendant in this case.

In 1999, this court assumed responsibility for this case after the death of the magistrate judge who had been handling it for pretrial purposes. Counsel was obtained to represent Kosilek pro bono and filed another amended complaint.

The court granted the motions of Nelson and Maloney to dismiss the claims for damages against them individually based on qualified immunity, and granted Nelson's motion for summary judgment on the claims against him in his official capacity. Maloney's motion for summary judgment on Kosilek's claim for injunctive relief was denied. A non-jury trial concerning that claim was conducted in February 2002.

At trial, counsel for Kosilek represented that Kosilek is now requesting that the court issue an injunction requiring that he be provided with treatment in prison for gender identity disorder consistent with the Standards of Care. More specifically, Kosilek requests that the court order that Maloney: retain a doctor who specializes in treating gender identity disorders to evaluate Kosilek; authorize that doctor to prescribe any treatment deemed appropriate; and provide the treatment prescribed by that doctor. The court is not now being asked to order that Kosilek be administered female hormones or provided sex reassignment surgery. These are, however, forms of treatment that are provided to some, but not all, transsexuals pursuant to the Standards of Care. Thus, the injunction that Kosilek requests could ultimately require the administration of female hormones and, a year or more later, sex reassignment surgery.

Ordinarily, the Commissioner of the DOC would not be the appropriate defendant in a case involving an inmate's claim alleging a denial of medical care. As Commissioner, Maloney does not usually make decisions concerning medical care. It is his policy and usual practice to rely on the social workers and medical professionals employed by the DOC, and the outside experts they often consult, to determine whether an inmate has a serious medical need and, if so, what is necessary to treat it adequately.

Kosilek, however, has been dealt with differently. Because of Kosilek's lawsuit Maloney, as a practical matter, has made the major decisions relating to Kosilek's medical care.

As a result of this case, in consultation with attorneys and doctors employed by the DOC, in 2000 Maloney adopted a blanket policy concerning the treatment the DOC would provide to the several transsexual prisoners in its custody. That policy is aimed at "freezing" a transsexual in the condition he was in when incarcerated. It contemplates the administration of female hormones for inmates for whom they were prescribed prior to incarceration. The policy strictly prohibits providing hormones to inmates like Kosilek who have taken only "black market" hormones previously. Maloney's policy also categorically excludes the possibility that an inmate will receive sex reassignment surgery. Because Maloney removed from the professionals employed by the DOC their usual discretion concerning Kosilek's medical needs and care, Maloney's conduct is properly the focus of this case.

Kosilek's claims involve facts that are unusual, but not unprecedented. In view of the general lack of public knowledge and understanding of gender identity disorders, the idea that an imprisoned male murderer may ever have a right to receive female hormones and sex reassignment surgery may understandably strike some people as bizarre. However, Kosilek's claims raise issues involving substantial jurisprudence concerning the application of the Eighth Amendment to inmates with serious medical needs. This case requires the neutral application of the principles that emerge from that jurisprudence to the facts established by the evidence in this case.

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 and citation 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 in the United States have a right to humane treatment, including a right to adequate care for their serious medical needs. The Constitution does not protect this right because we are a nation that coddles criminals. Rather, we recognize and respect this right because we are, fundamentally, a decent people, and decent people do not allow other human beings in their custody to suffer needlessly from serious illness or injury.

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 received adequate medical care. Rather, he must also prove that the official responsible for his care has intentionally ignored a serious medical need or been deliberately indifferent to it.

Accordingly, the Eighth Amendment standard has an objective and subjective component. With regard to the objective prong, it must be proven that there is a serious medical need and that adequate care has not been provided. 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 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.

An inmate is not entitled to the care of his choice. Courts must defer to the decisions of prison officials concerning what form of adequate care to provide an inmate. However, courts must decide if the care being provided is minimally adequate.

The subjective prong of the deliberate indifference test also has two parts. The responsible official must be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists. He must also draw that inference.

Because the Eighth Amendment proscribes the unnecessary infliction of pain on a prisoner, the practical constraints imposed by the prison environment are relevant to whether the subjective component of the Eighth Amendment test has been satisfied. The duty of prison officials to protect the safety of inmates and prison personnel is a factor that may properly be considered in prescribing medical care for a serious medical need. It is conceivable that a prison official, acting reasonably and in good faith, might perceive an irreconcilable conflict between his duty to protect safety...