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Kosilek v. Spencer

United States Court of Appeals, First Circuit

December 16, 2014

MICHELLE KOSILEK, Plaintiff, Appellee,
LUIS S. SPENCER, Commissioner of the Massachusetts Department of Correction, Defendant, Appellant

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Richard C. McFarland, Legal Division, Department of Correction, with whom Nancy Ankers White, Special Assistant Attorney General, was on brief for appellant.

Joseph L. Sulman, with whom David Brody, Law Office of Joseph L. Sulman, Frances S. Cohen, Jeff Goldman, Christina Chan, and Bingham McCutchen LLP, were on brief for appellee.

Andrew D. Beckwith, on brief for the Massachusetts Family Institute, amicus curiae in support of appellant.

Daniel V. McCaughey, Cori A. Lable, Kristin G. Ali and Ropes & Gray LLP, on brief for World Professional Association for Transgender Health, Mental Health America, Callen-Lorde Community Health Center, Whitman-Walker Health, GLMA: Health Professionals Advancing LGBT Equality, and Mazzoni Center, amici curiae in support of appellee.

Matthew R. Segal, Joshua Block, LGBT Project, and David C. Fathi, National Prison Project, on brief for American Civil Liberties Union, American Civil Liberties Union of Massachusetts, Legal Aid Society, Harvard Prison Legal Assistance Project, Prisoners' Legal Services of New York, and Prisoners' Legal Services of Massachusetts, amici curiae in support of appellee.

Jennifer Levi and Bennett H. Klein, on brief for Gay & Lesbian Advocates & Defenders, EqualityMaine, Human Rights Campaign, MassEquality, Massachusetts Transgender Political Coalition, National Center for Transgender Equality, National Gay & Lesbian Task Force, and Transgender New Hampshire, amici curiae in support of appellee.

Before Lynch, Chief Judge, Torruella, Howard, Thompson and Kayatta, Circuit Judges. THOMPSON, Circuit Judge, dissenting. KAYATTA, Circuit Judge, dissenting.

En Banc


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TORRUELLA, Circuit Judge.

This case involves important issues that arise under the Eighth Amendment to the U.S. Constitution. We are asked to determine whether the district court erred in concluding that the Massachusetts Department of Correction (" DOC" ) has violated the Cruel and Unusual Punishment Clause of the Eighth Amendment by providing allegedly inadequate medical care to prisoner Michelle Kosilek (" Kosilek" ). More precisely, we are faced with the question whether the DOC's choice of a particular medical treatment is constitutionally inadequate, such that the district court acts within its power to issue an injunction requiring provision of an alternative treatment -- a treatment which would give rise to new concerns related to safety and prison security.

After carefully considering the community standard of medical care, the adequacy of the provided treatment, and the valid security concerns articulated by the DOC, we conclude that the district court erred and that the care provided to Kosilek by the DOC does not violate the Eighth Amendment. We therefore reverse the district court's grant of injunctive relief, and we remand with instructions to dismiss the case.

I. Background

This litigation has now spanned more than twenty years and produced several opinions of significant length. See Kosilek v. Spencer, 889 F.Supp.2d 190 (D. Mass. 2012) (" Kosilek II" ); Kosilek v. Maloney, 221 F.Supp.2d 156 (D. Mass. 2002) (" Kosilek I" ). In light of the expansive record, we recite here only the facts necessary to clarify the issues on appeal.

A. Michelle Kosilek

Michelle Kosilek -- born in 1949 as Robert Kosilek -- is an anatomically male prisoner in her mid-sixties who suffers from gender identity disorder (" GID" )[1] and self-identifies as a female. In 1992 Kosilek was convicted of first-degree murder and sentenced to a term of life imprisonment

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without parole for the 1990 strangulation of her then-wife, Cheryl McCaul, whose body was found abandoned in the backseat of a vehicle at a local shopping mall. See Commonwealth v. Kosilek, 423 Mass. 449, 668 N.E.2d 808 (1996). While awaiting trial for McCaul's murder, Kosilek twice attempted to commit suicide. She also once tied a string around her testicles in an attempt at self-castration, but removed the string when it became painful. Since 1994, Kosilek has been housed at MCI-Norfolk, a medium security male prison in Massachusetts. Throughout the twenty-year duration of her incarceration at MCI-Norfolk, Kosilek has not attempted to harm herself.

B. Kosilek I

Kosilek first sued the DOC in 1992, alleging that its failure to provide direct treatment for her GID was a violation of the Eighth Amendment. At that time, Kosilek was receiving only " supportive therapy" to cope with the distress caused by her GID. Kosilek initially sought both damages and injunctive relief requiring the DOC to provide her with sex reassignment surgery (" SRS" ), although only her claim for injunctive relief survived to trial.

The district court issued a decision in 2002, in which it concluded that Kosilek had proven the existence of a serious medical need and had shown that her then-current treatment plan was inadequate. The court concluded, however, that the DOC was unaware that a failure to provide additional treatment to Kosilek might result in serious harm. Moreover, it held that the DOC's failure to provide treatment was rooted, at least in part, in " sincere security concerns." As a result, the court ruled that the DOC was not in violation of the Eighth Amendment.

Despite finding for the DOC, the district court's opinion made clear that Kosilek required additional treatment for her GID, and that the DOC would need to develop and implement an improved treatment plan. The court warned that a failure to provide treatment in the future, now that the DOC was on notice of the potential for harm if only " supportive therapy" was provided, could amount to an Eighth Amendment violation.

C. The DOC offers treatment

The DOC responded to Kosilek I by revamping its policy for GID treatment. In the past, the DOC had adopted a policy of " freezing" a prisoner's treatment at whatever level that prisoner had attained prior to incarceration. Hormonal treatment, for example, would be available only to prisoners who had been prescribed hormones prior to incarceration. In place of this " freeze-frame" policy, after Kosilek I the DOC adopted a plan that allowed prisoners to receive additional treatment beyond the level of that received before entering prison, when such care was medically required. Under this new plan, medical recommendations would be made by the University of Massachusetts Correctional Health Program (" UMass" ), a health-services provider contracted by the DOC. The DOC Commissioner and the DOC Director of Health Services were responsible for assessing whether any change in treatment would create increased security concerns.

Kosilek was evaluated by Dr. David Seil, a gender-identity specialist, who prescribed a course of treatment to alleviate the mental distress -- often referred to as " dysphoria" -- associated with her GID. In line with Dr. Seil's recommendations, in 2003 the DOC began providing Kosilek with significant ameliorative treatment aimed at directly addressing the mental distress caused by GID. In addition to continued mental health treatment, she

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was provided female, gender-appropriate clothing and personal effects, and electrolysis was performed to permanently remove her facial hair.[2] Kosilek also began a course of hormonal treatments recommended by an endocrinologist. These treatments resulted in " breast development and shrinkage of her testicles." All of the treatments described continue to be offered to Kosilek to the present day.

D. Consideration of SRS

In line with the Harry Benjamin Standards of Care (" the " Standards of Care" or " the Standards" ),[3] Dr. Seil recommended that Kosilek be considered for SRS after one year of hormonal treatment.[4] Accordingly, in 2004 the DOC began the process of finding an appropriate professional to evaluate Kosilek's eligibility for, and the necessity of, SRS. At the DOC's Executive Staff Meetings there was some debate regarding who should be hired to conduct this evaluation. The UMass Mental Health Program Director, Dr. Kenneth Appelbaum, suggested that the DOC consult with the Fenway Community Health Center (the " Fenway Center" ). The Fenway Center is a Boston-based facility focused on serving the lesbian, gay, bisexual, and transgender community. In contrast, the DOC's Director of Mental Health and Substance Abuse Services, Gregory Hughes (" Hughes" ), suggested consulting with Cynthia Osborne (" Osborne" ), a gender identity specialist employed at the Johns Hopkins School of Medicine who had experience working with other departments of correction regarding GID treatment.

Hughes expressed concern with using the Fenway Center because of " the perception that their approach was to come out with recommendations that globally endorsed a full panoply of treatments." It was thought that Osborne, in contrast, " may do more objective evaluations." Dr. Appelbaum noted, however, that the Fenway Center's approach was, to his knowledge, probably " more the norm than the exception." The DOC also recognized that having a Boston-based treatment provider might more easily facilitate the process of Kosilek's evaluation.

The Fenway Center was retained by the DOC, and Kosilek was evaluated by Kevin

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Kapila, M.D., and Randi Kaufman, Psy.D., in a ninety-minute interview. Drs. Kapila and Kaufman also reviewed Kosilek's medical records. On February 24, 2005, they issued a report recommending that Kosilek receive SRS (the " Fenway Report" ). The Fenway Report acknowledged Kosilek's positive response to the treatment provided by the DOC.

Her joy around being feminized through hormone therapy, facial and body hair removal, and her ability to have access, and to dress in, feminine attire and make-up is palpable. These responses further suggest that being able to express herself as female has been helpful in alleviating her gender dysphoria. . . . [I]t is clear ...

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