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January 21, 1998

KATHLEEN M. HAWK, et al., Defendants.

The opinion of the court was delivered by: KESSLER

 Plaintiff Dee Deidre Farmer is an inmate at the federal correctional institute in Butner, North Carolina ("FCI-Butner"). Farmer is a pre-operative male-to-female transsexual suffering from gender dysphoria, a medically recognized psychological disorder. *fn1" She brings this action to challenge the constitutionality of a Bureau of Prisons ("BOP") policy regarding the medical treatment of transsexuals, claiming that it violates the Equal Protection Clause of the Fifth Amendment. She further argues that the BOP's failure to promulgate a new policy, as well as its failure to enforce its existing policy, demonstrate a deliberate indifference to her serious medical needs and violate the Eighth Amendment. Farmer seeks injunctive and declaratory relief, and attorneys' fees and costs.

 Farmer also brings a Bivens claim against the BOP Medical Director, Dr. Kenneth Moritsugu, in his individual capacity. She argues that, by failing to provide treatment appropriate for her transsexualism and by failing to promulgate a new policy for the treatment of transsexuals, Dr. Moritsugu violated her Eighth Amendment rights. She seeks both compensatory and punitive damages from Dr. Moritsugu.

 This matter is now before the Court on Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment [# 78]. Having considered Defendants' Motion, Plaintiff's Opposition, Defendants' Reply and the entire record herein, for the reasons set out below, Defendants' Motion is hereby granted with respect to Plaintiff's claim that the BOP and Dr. Moritsugu, by failing to promulgate a new policy for the treatment of transsexuals, violated the Eighth Amendment (Count I P 54; Count II P 56, implementation clause). Defendants' Motion is hereby denied with respect to all other claims.

 I. Background2

 Plaintiff Dee Deidre Farmer is a transsexual infected with AIDS who has been incarcerated in the federal prison system since 1986. (Decl. of Dee Farmer at 3.)

  Farmer claims that the BOP has failed to treat her transsexualism. She has challenged her alleged lack of treatment in previous actions. See, e.g., Farmer v. Haas, 990 F.2d 319 (7th Cir. 1993) (following jury verdict for Defendants, Court of Appeals affirmed trial judge's decision not to request lawyer for Plaintiff Farmer, as there is no constitutional or statutory right to counsel in federal civil cases); Farmer v. Carlson, 685 F. Supp. 1335 (M.D. Pa. 1988) (rejecting Farmer's claim that denial of hormone therapy and delay in provision of psychiatric treatment violated the Eighth Amendment and granting Defendants' Motion for Summary Judgment). Farmer also has cases pending in various courts, including Farmer v. Mothersead, et al., (D. Mo., filed March 6, 1992), and Farmer v. Beeler, et al., (D. Colo., filed June 11, 1993).

 The actions previously filed by Farmer challenge the adequacy of the medical treatment provided her by individual facilities in which she has been housed. The instant action challenges the constitutionality of the BOP's system-wide policy on the treatment of transsexuals.

 The BOP's Program Statement provides in general that inmates will be given care that is either "medically mandatory" or "presently medically necessary". (Defs.' Ex. 2, Bureau of Prisons Program Statement 6000.4, Ch. 1, Sec. 1, Mission Statement.) The Program Statement also articulates a policy dealing specifically with the medical treatment of transsexuals with hormone therapy, which provides that:

It is the policy of the Bureau 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.

 (Id. at Ch. 5, Section 14, Transsexuals.) ("transsexual policy").

 The BOP has not provided Farmer with hormone therapy for her transsexualism, despite her assertion that she was prescribed and had been taking female hormones as treatment for her transsexualism for several years prior to incarceration. (Compl. P 12.) Neither party provides, nor do they make reference to, any documentation of her pre-incarceration treatment.

 The extent to which Farmer has received psychotherapy to treat her transsexualism is very much in dispute. Farmer claims that she was denied treatment for the first six years of her incarceration. She states that she was provided with psychotherapy in 1992 at the United States Medical Center for Federal Prisoners in Springfield, Missouri ("MCFP-Springfield"), but only after she attempted to sever her scrotum with a razor. After Farmer was transferred from MCFP-Springfield, she claims the BOP again denied her treatment until she was transferred to FCI-Butner in February 1994. At FCI-Butner, Farmer underwent psychotherapy with Dr. Jim Hilkey until his retirement in May 1996. She claims that no treatment has been offered or provided since that date. (Farmer Decl. at 4.)

 Defendants counter that Farmer has continuously received treatment at FCI-Butner since 1994. They submit the Declaration of Dr. Mike Schaefer, who states that he is Farmer's primary psychologist and has been so since the retirement of Dr. Hilkey. (Schaefer Decl. P 3.) Schaefer states that he meets with Farmer on a bi-weekly basis and that other medical staff also monitor her condition on a regular basis. (Id. PP 5-6.)

 Farmer alleges that she wrote several letters to Defendant Dr. Kenneth Moritsugu, Medical Director of the BOP, requesting treatment. Moritsugu responds that he recalls receiving only one letter dated July 30, 1992, in which Farmer apparently requested specific treatments for her transsexualism, namely estrogen, anti-androgen, castration, and psychotherapy. Dr. Moritsugu responded to Farmer's request by letter dated August 11, 1992.

 II. Analysis

 A. Standard of Review

 Defendants have filed a Motion to Dismiss or, in the Alternative, for Summary Judgment. They argue that the Court has no subject matter jurisdiction over this action, and that Farmer has failed to state a claim upon which relief can be granted, relying upon several affidavits, court records, and other documents, attached to their Motion. The Federal Rules of Civil Procedure require that if, on a motion to dismiss for failure to state a claim, the movants submit matters outside the pleadings which are not excluded by the court, the motion must be treated as one for summary judgment and disposed of in accordance with Rule 56. Fed. R. Civ. P. 12(b). Defendants' Motion requires consideration of matters outside the pleadings and therefore will be treated as a Motion for Summary Judgment.

 Summary judgment will be granted when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is "material" if it might affect the outcome of the action under the governing law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The party seeking summary judgment bears the initial burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 In determining whether the movant has met this burden, a court must consider all factual inferences in the light most favorable to the non-moving party. McKinney v. Dole, 246 U.S. App. D.C. 376, 765 F.2d 1129, 1135 (D.C. Cir. 1985). Once the moving party makes its initial showing, however, the nonmoving party must demonstrate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324; McKinney, 765 F.2d at 1135. Moreover, "in determining a motion for summary judgment, the court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." Local Rule 108(h).

 B. Jurisdiction/Judicial Economy

 Defendants argue that the Court should not entertain Farmer's claim. First, they argue that the Court has no subject matter jurisdiction over Farmer's claim for damages against Defendants in their official capacity. Second, Defendants note that Farmer has a similar action pending in the U.S. District Court for the Western District of Missouri and argue that the instant action is duplicative of the Missouri action. They argue that this Court should thus, in the interest of judicial economy, decline jurisdiction over the instant action. Finally, Defendants contend that, since Farmer requests an injunction against facilities at which she is no longer incarcerated and which threaten no harm to her, her complaint is moot. The Court will address Defendants' arguments seriatim.

 First, Defendants are correct that this Court has no subject matter jurisdiction in this case over a claim for damages against them in their official capacities. See Kentucky v. Graham, 473 U.S. 159, 166, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985). However, that conclusion is of little consequence, since Farmer does not seek monetary damages from Defendants in their official capacities. Instead, she seeks damages only from Dr. Moritsugu in his individual capacity pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), which permits plaintiffs to obtain monetary damages from federal officials for injuries that result from their violations of constitutional rights. The Court will discuss the merits of Farmer's Bivens claim below.

 Second, Defendants argue that this action duplicates Farmer v. Mothersead, et al., (W.D. Mo., filed March 6, 1992) ("Missouri Lawsuit"), currently pending in the U.S. District Court for the Western District of Missouri. The two lawsuits, however, are very different. The Missouri Lawsuit names as defendants a psychology intern and the warden at MCFP-Springfield, as well as the Deputy Regional Director of the BOP's North Central Region. Those defendants are sued in their individual and official capacities. The Missouri Lawsuit seeks a declaratory judgment that the defendants' conduct violated Farmer's constitutional rights, injunctive relief requiring defendants to retain an expert in transsexualism to evaluate and prescribe treatment for her, and damages and costs. The instant action differs from the Missouri Lawsuit in that it challenges, not only the conduct of officials at several facilities (including MCFP-Springfield), but the BOP's system-wide policy regarding the medical treatment of transsexuals.

 Defendants argue that a suit against government officials in their official capacities is equivalent to a suit against the government itself, citing Atchinson v. District of Columbia, 315 U.S. App. D.C. 318, 73 F.3d 418, 424 (D.C. Cir. 1996). Thus, they argue, resolution of the Missouri Lawsuit (which names government officials as defendants) should grant Farmer any relief to which she may be due in this case (because it also names government officials as defendants).

 The government is incorrect. A judgment in favor of Farmer in the Missouri Lawsuit will only resolve her Bivens claims against those three particular defendants (the psychology intern, the warden at MCFP-Springfield, and the Deputy Regional Director of BOP's North Central Region) and her challenge to the treatment that she received at MCFP-Springfield. The Missouri Lawsuit does not seek to change BOP system-wide policy, the relief that Farmer seeks in the present lawsuit. Thus, the Missouri Lawsuit is not duplicative of this case, and therefore provides no justification for this Court refusing to proceed with this action.

 The parties fail to discuss still another suit which Farmer has filed challenging BOP's failure to treat her transsexualism, Farmer v. Perkill, et al., (D. Colo., filed June 11, 1993) ("Colorado Lawsuit"). In that case, Farmer has again sued Dr. Moritsugu, in both his individual and official capacities. Farmer's claims against Moritsugu in the Colorado Lawsuit do in fact mirror her claims against him in the instant action. However, "where two cases between the same parties on the same cause of action are commenced in two different Federal courts, the one which is commenced first is to be allowed to proceed to its conclusion first." Washington Metropolitan Area Transit Authority v. Ragonese, et al., 199 U.S. App. D.C. 246, 617 F.2d 828, 830 (D.C. Cir. 1980) (quoting Speed Prods. Co. v. Tinnerman, 83 U.S. App. D.C. 243, 171 F.2d 727, 729 (D.C. Cir. 1948)). The instant case was filed in July 1992, while the Colorado Lawsuit was filed in June 1993. Consequently, the instant case will proceed to its conclusion.

 Finally, Defendants argue that the instant action is moot because Farmer is no longer housed at the institutions that are the subject of her suit. Defendants claim that "prisoners transferred from a prison no longer have a pending case or controversy regarding injunctive relief as they no longer have a continued present injury or real and immediate threat of repeated injury." (Defs.' Mem. Summ. J. at 16, citing Young v. Lane, 922 F.2d 370, 373 (7th Cir. 1991))

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