184. The Court explained that milder gender identity disorders can be treated without resort to psychotherapy, hormone treatment, or sex reassignment therapy. Id. In this case, Defendants have not argued that Plaintiff's GID is not a serious medical need.
b. Deliberate Indifference
"It is well-established that mere disagreement over the proper treatment does not create a constitutional claim. So long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation." Chance, 143 F.3d at 703 (citation omitted). Courts have found that under the Eighth Amendment inmates with GID must receive some form of treatment. See Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987) (holding that plaintiff inmate with GID states a proper Eighth Amendment claim by alleging that defendants denied her all treatment and noting that "she does not have a right to any particular type of treatment, such as estrogen therapy"); Wolfe, 130 F. Supp.2d at 653 (denying defendants' motion for summary judgment in part because there was a question of fact as to whether inmate received any treatment for GID); Brown, 1996 WL 507118, at *4 n. 3 ("I caution defendants that if plaintiff does indeed suffer from gender dysphoria, they must provide treatment although not necessarily hormone therapy.") (citation omitted).
In addition, courts have held that the treatment plan for an inmate with GID must be formulated by a medical professional and not by prison administrators. In Allard v. Gomez, 9 Fed. Appx. 793, 2001 WL 638413, at *1 (9th Cir. June 8, 2001), the Ninth Circuit reversed a grant of summary judgment in favor of the defendants because there was a question of fact as to whether the plaintiff, an inmate with GID, was denied hormone treatment recommended by a doctor "on the basis of an individualized medical evaluation or as a result of a blanket rule, the application of which constituted deliberate indifference to [the inmate's] medical needs." Similarly, the District Court for the District of Massachusetts held that the treatment of an inmate with GID was inadequate when "no informed medical judgment has been made." Kosilek, 221 F. Supp.2d at 158. These decisions are consistent with Chance, in which the Second Circuit suggested that the medical treatment of inmates must be based on "sound medical judgment." Chance, 143 F.3d at 704.
Defendants do not contest Plaintiff's claim that he was never treated for GID notwithstanding numerous requests for treatment. in addition, Defendants have not provided the Court with any evidence showing that the decision to refuse Plaintiff treatment was based on sound medical judgment. Finally, Defendants have failed to submit any evidence that they were not aware that Plaintiff's health could be jeopardized if treatment was refused. Accordingly, the Court finds that Defendants have failed to establish, as a matter of law, that Plaintiff was provided adequate treatment for his serious medical needs.
E. Qualified Immunity
"Qualified immunity shields public officials from liability for civil damages if their actions were objectively reasonable, as evaluated in the context of legal rules that were `clearly established' at the time." Poe v. Leonard, 282 F.3d 123, 132 (2d Cir. 2002) (citations omitted). "Where the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive." Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
The Supreme Court recently explained that when considering a defendant's assertion of qualified immunity, courts must first address the following question: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier, 533 U.S. at 201, 121 S.Ct. 2151. If the officer's conduct violated a constitutional right, the Court must then determine whether the right was "clearly established" when the violation occurred. Id. A right is clearly established when "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202, 121 S.Ct. 2151 (citations omitted).
The Court has already found, supra, that the facts alleged in Plaintiff's complaint, if true, show that Defendants violated Plaintiff's Eighth Amendment rights. Accordingly, the Court turns to the second step of the qualified immunity inquiry: whether this right was clearly established at the time of the alleged violation. "This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition. . . ." Id. at 201, 121 S.Ct. 2151. The relevant question is not whether it was clearly established that Plaintiff has Eighth Amendment rights. Rather, the Court must ask "whether the state of the law [at the time of the alleged constitutional violation] gave [Defendants] fair warning that their alleged treatment of [Plaintiff] was unconstitutional." Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).
The absence of binding precedent squarely addressing the facts presented in this case does not inexorably lead to the conclusion that the constitutional right allegedly violated here was not clearly established. Neither the Supreme Court nor the Second Circuit has held that a transsexual inmate has an Eighth Amendment right to see a medical professional able to prescribe some medical treatment. However, "a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has not previously been held unlawful." Id. (internal quotations omitted). Consequently, "officials can still be on notice that their conduct violates established law even in novel factual circumstances." Id.
Defendants contend that they are entitled to qualified immunity because it was objectively reasonable for them to believe that their actions did not violate the Eighth Amendment. In particular, Defendants assert that the refusal to provide any medical treatment to Plaintiff was objectively reasonable because such conduct comports with DOCS policy.*fn6 Although Defendants fail to cite a case in support of this argument, courts have found that a defendant's claim of qualified immunity is bolstered by evidence that he was following orders when he acted unconstitutionally. See, e.g., Lauro v. Charles, 219 F.3d 202, 216 n. 10 (2d Cir. 2000). This does not mean that a defendant is entitled to qualified immunity whenever he engages in conduct that is sanctioned by his supervisors. As the Supreme Court explained, a policy "could not make reasonable a belief that was contrary to a decided body of case law." Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). Accordingly, the Second Circuit has held that defendants who act pursuant to a facially invalid policy are not entitled to qualified immunity. See Walsh v. Franco, 849 F.2d 66, 69-70 (2d Cir. 1988) (affirming district court's denial of summary judgment on qualified immunity grounds where plaintiff was strip searched in accordance with a prison's blanket policy of conducting strip searches of all misdemeanor arrestees); Diamondstone v. Macaluso, 148 F.3d 113, 126 (2d Cir. 1998) (finding that defendant police officer who ticketed motorist after traffic court rulings established that the ticketing was improper was not entitled to qualified immunity simply because his superiors directed him to continue the ticketing).
As noted above, Section 1.31 of the DOCS Health Services Policy Manual provides for the continued treatment of inmates who were diagnosed with GID prior to incarceration. The policy's silence regarding the treatment of transsexual inmates who were not diagnosed with GID prior to incarceration is apparently read by prison officials to indicate that DOCS will not provide any treatment to these inmates. While Defendants rely heavily on this policy as justification for their actions, they do not explain the puzzling distinction that the policy makes between those inmates who were diagnosed before incarceration and those who were diagnosed after being incarcerated. Surely inmates with diabetes, schizophrenia, or any other serious medical need are not denied treatment simply because their conditions were not diagnosed prior to incarceration.
One explanation for the distinction may be found in cases dealing with the treatment of transsexual inmates who were taking hormones before being incarcerated. See Phillips v. Michigan Dept. of Corrections, 731 F. Supp. 792 (W.D.Mich. 1990); Wolfe, 130 F. Supp.2d at 653. The abrupt cessation of hormone therapy can "wreak havoc on [the inmate's] physical and emotional state." Phillips, 731 F. Supp. at 800. Accordingly, courts have held that prisons which refuse to provide hormones to inmates who were taking hormones before they were incarcerated may violate the Eighth Amendment. Phillips, 731 F. Supp. at 800; Wolfe, 130 F. Supp.2d at 653. Section 1.31 thus may be aimed at instructing prison officials to maintain hormone treatment which began prior to incarceration. Nevertheless, the effect of the policy has been to deny all treatment for transsexual inmates who cannot establish that they were diagnosed with GID prior to incarceration.
This blanket denial of medical treatment is contrary to a decided body of case law. Prisons must provide inmates with serious medical needs some treatment based on sound medical judgment. There is no exception to this rule for serious medical needs that are first diagnosed in prison. Prison officials are thus obliged to determine whether Plaintiff has a serious medical need and, if so, to provide him with at least some treatment. Prison officials cannot deny transsexual inmates all medical treatment simply by referring to a prison policy which makes a seemingly arbitrary distinction between inmates who were and were not diagnosed with GID prior to incarceration. in light of the numerous cases which hold that prison officials may not deny transsexual inmates all medical attention, especially when this denial is not based on sound medical judgment, the Court finds that Defendants have failed to establish as a matter of law that their actions were objectively reasonable.*fn7
Accordingly, it is hereby
ORDERED, that Defendants' motion for summary judgment is GRANTED as to Plaintiff's due process claim and as to his Eighth Amendment claims against Defendants Kaufman, Eagen, Worley, John Doe #1, John Doe #2, and John Doe #3, and DENIED in all other respects; and it is further
ORDERED, that the Clerk serve a copy of this order on all parties by regular mail.
IT IS SO ORDERED.