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BROOKS v. BERG

July 15, 2003

MARK L. BROOKS A/K/A JESSICA M. LEWIS, PLAINTIFF,
v.
STAN BERG, ASSISTANT DEPUTY SUPERINTENDENT, CLINTON CORRECTIONAL FACILITY; DANIEL SENKOWSKI, SUPERINTENDENT, CLINTON CORRECTIONAL FACILITY; THOMAS EAGEN, DIRECTOR OF INMATE GRIEVANCE; FLORENCE KAUFMAN; HELEN WORLEY, SUPERVISOR OF INMATE GRIEVANCE; JOHN DOE #1, STAFF, MENTAL HEALTH SATELLITE UNIT; JOHN DOE #2, STAFF, MENTAL HEALTH SATELLITE UNIT; JOHN DOE #3, STAFF, MENTAL HEALTH SATELLITE UNIT, DEFENDANTS.



The opinion of the court was delivered by: Lawrence Kahn, District Judge.

MEMORANDUM-DECISION AND ORDER

I. Background

A. Facts

Plaintiff Mark L. Brooks a/k/a Jessica M. Lewis ("Plaintiff") is an inmate at Clinton Correctional Facility ("Clinton"), where he*fn1 is housed in the Assessment Program and Preparation Unit (APPU).*fn2 Plaintiff is a biological male who claims to suffer from gender identity disorder (GID) (also known as gender dysphoria or transsexualism). The Supreme Court has explained that transsexuals have "`[a] rare psychiatric disorder in which a person feels persistently uncomfortable about his or her anatomical sex,' and . . . typically seek[] medical treatment, including hormone therapy and surgery, to bring about a permanent sex change." Farmer v. Brennan, 511 U.S. 825, 829, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting American Medical Association, Encyclopedia of Medicine 1006 (1989)).

Plaintiff "believes that she has the gender identity of a female and can find comfort only through living and presenting as a female." Complaint ¶ 7. While Plaintiff has been aware of his female identity since childhood, he first became familiar with GID in prison. Id. ¶ 11. After immersing himself in literature on GID, Plaintiff became convinced that he is a transsexual. Id. "In 1998, Plaintiff realized that no amount of research and knowledge would ease her suffering, and she decided to seek treatment." Id. ¶ 12.

On August 25, 1998, Plaintiff sent a letter to Florence Kaufman, who Plaintiff believed to be a psychiatrist or psychologist. Id. ¶ 13. Plaintiff explains that he attempted to contact Kaufman because GID is considered a mental health problem and treatment for GID generally begins with diagnostic psychotherapy. Id. Plaintiff claims that he never received a response to the August 25 letter. Id. ¶ 14.

On September 21, 1998, Plaintiff sent a letter to the Mental Health Satellite Unit at Clinton, addressed simply to the "Satellite Unit." Id. ¶ 15. Plaintiff did not receive a response. Id. Over the next six months Plaintiff sent several more letters to the Satellite Unit, but all went unanswered. Id. ¶¶ 16-18. "Not one single letter from August 1998, through February 1999, was answered. No diagnosis was given, no treatment was provided, plaintiff was never seen by any medical staff from any facility medical or mental health departments, and no reasons were offered for the obvious outright denial of treatments." Id. ¶ 18.

On March 1, 1999, Plaintiff sent a letter to Stan Berg, the supervisor of the APPU. Id. 20. In his letter, Plaintiff informed Berg that he had unsuccessfully sought treatment for GID and asked Berg to intervene on his behalf. Id. ¶ 20. Plaintiff did not receive a response to the March 1 letter and on April 12, 1999, he sent Berg a second letter requesting treatment.

On September 12, 2000, after exhausting his administrative remedies, Plaintiff filed the instant complaint pursuant to 42 U.S.C. § 1983. In his first cause of action, Plaintiff alleges that Defendants*fn3 failed to provide him with necessary medical treatment for his serious medical need in violation of the Eighth Amendment. Plaintiff's second cause of action alleges that Defendants violated his due process rights by improperly handling his inmate grievance concerning the denial of medical treatment. Plaintiff asks this Court, inter alia, to issue an injunction ordering Defendants to provide him "with all of the necessary medical treatments, primary and secondary, for the adequate and proper treatment of Transsexualism (Gender Identity Disorder)," and to award him compensatory and punitive damages. Complaint ¶ 29A.

Defendants moved for summary judgment and the Honorable Gustave J. DiBianco, United States Magistrate Judge, prepared a Report-Recommendation pursuant to 28 U.S.C. § 636(b) and L.R. 72.3 of the Northern District of New York. The Magistrate Judge found that Defendants were not deliberately indifferent to Plaintiff's serious medical needs. The Magistrate Judge also determined that Defendants Kaufman, Berg, and the John Does were not personally involved in the alleged violations of Plaintiff's constitutional rights. The Magistrate Judge found that Plaintiff's due process rights were not violated. Finally, the Magistrate Judge found that all Defendants were protected by qualified immunity. Plaintiff filed objections to the Report-Recommendation on October 30, 2002. After leave of the Court was granted, Plaintiff filed supplemental objections on March 27, 2003.

B. DOCS Policy On Estrogen Therapy for Gender Dysphoria

Defendants have submitted a Department of Correctional Services (DOCS) policy bearing the subject "Estrogen Therapy for Gender Dysphoria." See DOCS Health Services Policy Manual § 1.31, Defendants' Ex. J. Section 1.31 of the DOCS Health Services Policy Manual states: "The New York State Department of Correctional Services continues treating inmates for Gender Dysphoria identified prior to incarceration." Id. Under this policy, inmates who can prove that they received hormone therapy prior to incarceration may be eligible for continued hormone therapy. The policy further states that "[d]uring incarceration transsexual surgical operations are not honored." Id.

C. Nature of the Complaint and Relief Sought

Before turning to the merits of Defendants' motion, it is important to note that Plaintiff's requests for treatment have been misconstrued by the prison officials who addressed his inmate grievance and by Defendants in defending against this action. In his inmate grievance, Plaintiff requests "all of the minimal, though appropriate treatments and all necessary examinations/testing." See Inmate Grievance Complaint, attached to Complaint. While Plaintiff indicated that he believed that the appropriate treatment would include electrolysis, vocal chord modulation, breast implant surgery, and sex reassignment surgery, a qualified medical professional would obviously determine what treatment was "minimal, though appropriate." The Inmate Grievance Resolution Committee (IGRC) answered Plaintiff's grievance with the following response: "The Committee advises grievant that per DOCS policy, cosmetic surgery will not be performed unless it is medically required." See Memo from I.G.R.C. to M. Brooks at 2, attached to Complaint. The IGRC thus reduced Plaintiff's request for "all of the minimal, though appropriate treatments" to a demand for cosmetic surgery.

The IGRC's decision was appealed to Superintendent Senkowski, who denied Plaintiff's appeal. On the form denying Plaintiff's appeal, the title of Plaintiff's grievance is inaccurately listed as "Wants genital reassignment." As grounds for the denial, the Superintendent stated:

Information provided by Medical reveals that there is no record of grievant receiving any treatment in this area of concern. The body altering requests are not provided.
Grievant is advised to address his medical issues to that department.

Denial of Appeal, attached to Complaint. Again, Plaintiff's request that prison officials intervene to arrange for him to receive some medical treatment is reduced to "body altering requests."

In his appeal of the Superintendent's decision to the Central Office Review Committee (CORC), Plaintiff clearly states that he is not demanding sex reassignment surgery; rather, he is requesting all treatment determined by medical professionals to be necessary: "[T]he nature of the grievance argued that I was never even seen by medical staff, which prevented them from determining whether or not such treatment was necessary in my case specifically." ...


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