its specific policy regarding the treatment of transsexuals. (Defs.' Ex. 1, Letter from Moritsugu to Farmer of 8/11/92, at 1.) He stated that the use of hormones for transsexualism may be continued at the same level of use existing prior to incarceration with his approval, but that Farmer was "not on hormone therapy upon arrival in the Federal Bureau of Prisons." (Id. at 1.) Dr. Moritsugu noted that he had not received a request for hormone therapy or castration from the medical personnel at MCFP-Springfield, the facility in which Farmer was incarcerated at that time, and stated that Farmer had indeed received counseling regarding her gender dysphoria. (Id. at 1-2.) He explained that because Farmer did "not present a specific mental health problem that medical health personnel can isolate for treatment", she would not receive any more treatment unless she has a specific need. (Id.)
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))
The government misreads Farmer's Complaint, for she does not seek an injunction against any specific federal facility. Instead, she seeks an injunction against the BOP itself. Farmer is subject to the BOP's general policy regardless of the facility in which she is housed, so long as she remains in BOP's custody. Defendants are in a position to ensure that transsexuals are provided appropriate treatment anywhere within the BOP system. The particular facility in which Farmer is housed within the BOP is irrelevant, and the fact that she has been transferred from the FCI in Florence, Colorado, to FCI-Butner does not moot her challenge to the BOP's system-wide medical policies. The Court thus finds that Farmer has satisfied the existing case or controversy requirement imposed by the Constitution. See O'Shea v. Littleton, 414 U.S. 488, 495-96, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974); Young v. Lane, 922 F.2d 370, 373 (7th Cir. 1991).
C. Bivens Claims
Farmer brings two claims against Dr. Moritsugu in his individual capacity. First, she claims that he failed to promulgate a policy which would require the medical staff to provide her with treatment for her gender dysphoria. Second, Farmer claims that Dr. Moritsugu failed to direct the medical staff to provide her with treatment, which constituted deliberate indifference to her serious medical needs in violation of the Eighth Amendment. Defendants contend that Dr. Moritsugu, as a federal official, is entitled to qualified immunity, and thus Farmer's claims against him must be dismissed.
In Bivens v. Six Unnamed Officers, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619, the Supreme Court held that an individual whose constitutional rights have been violated can bring a claim for damages against the official, in their individual capacity, who allegedly violated her rights. Farmer brings her claim against Dr. Moritsugu pursuant to Bivens. The defense of qualified or "good faith" immunity applies, however, to such suits against government officials. Harlow v. Fitzgerald, 457 U.S. 800, 815, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Mitchell v. Forsyth, 472 U.S. 511, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985). Defendants argue that Dr. Moritsugu is shielded from liability by that doctrine.
When an official raises a qualified immunity defense, the "plaintiff can prevail only by showing not just that there was a violation, but that defendant's acts violated 'clearly established statutory or constitutional rights of which a reasonable person would have known.'" Crawford-El v. Britton, 320 U.S. App. D.C. 150, 93 F.3d 813, 816 (D.C. Cir. 1996) (citing Harlow v. Fitzgerald, 457 U.S. at 818). Thus, the Court must first examine whether Farmer's "allegations could possibly constitute a violation of a clearly established constitutional right." 93 F.3d at 825. If there is a clearly established right to treatment, then the Court's inquiry turns to whether Moritsugu's alleged acts (or failures to act) could possibly violate that right.
1. Whether transsexual prisoners have a clearly established constitutional right to treatment
Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), established that deliberate indifference to a serious medical condition constitutes cruel and unusual punishment which violates the Eighth Amendment. The existing BOP policy is to provide inmates with care that is either "medically mandatory" or "presently medically necessary". (Defs.' Ex. 2, BOP Program Statement 6000.4, Ch. 1, Sec. 1, Mission Statement.)
If transsexualism can be considered a "serious medical condition", then the BOP, under requirements imposed by Estelle and its own Program Statement, must provide transsexual inmates with treatment.
Although our Court of Appeals has not yet directly addressed the issue, other federal Circuit Courts have determined that transsexualism is a serious medical condition. See, e.g., Brown v. Zavaras, 63 F.3d 967 (10th Cir. 1995); Phillips v. Michigan Dept. of Corrections, 731 F. Supp. 792 (W.D. Mich. 1990), aff'd, 932 F.2d 969 (6th Cir. 1991); White v. Farrier, 849 F.2d 322 (8th Cir. 1988); Meriwether v. Faulkner, 821 F.2d 408 (7th Cir. 1987), cert denied, 484 U.S. 935, 98 L. Ed. 2d 269, 108 S. Ct. 311 (1987); Supre v. Ricketts, 792 F.2d 958 (10th Cir. 1986). No Circuit Court has reached a contrary conclusion.
Many courts have reviewed the available medical literature and have concluded that transsexualism is not voluntarily assumed and is not a matter of sexual preference, but is a 'very complex medical and psychological problem'. See Meriwether, 821 F.2d at 411-13, citing Sommers v. Budget Marketing, Inc., 667 F.2d 748, 748 n.2 (8th Cir. 1982); Pinneke v. Preisser, 623 F.2d 546, 549 (8th Cir. 1980). See also American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, § 302.5x (3rd ed. 1980); Edgerton, et al., Psychological Considerations of Gender Reassignment Surgery, 9 Clinics in Plastic Surgery, 355, 357 (1982); Comment, The Law and Transsexualism: A Faltering Response to a Conceptual Dilemma, 7 Conn. L. Rev. 288, 288 n.1 (1975); Comment, Transexualism, Sex Reassignment Surgery, and the Law, 56 Cornell L. Rev. 963, 963 n.1 (1971)). The Merck Manual of Diagnosis and Therapy 1434 (14th ed. 1982), states that:
A transsexual believes that he is the victim of a biologic accident, cruelly imprisoned within a body incompatible with his real sexual identity. . . The diagnosis is made only if the disturbance has been continuous (not limited to periods of stress) for at least 2 yr, is not symptomatic of another mental disorder such as schizophrenia, and is not associated with genital ambiguity or genetic abnormality. . . Since some follow-up studies have provided evidence that some true transsexuals achieve more happy and productive lives with the aid of surgery, it is justified in carefully selected men.