Lisa Barrett v . Warden, NHSP CV-03-317-JD 11/20/03 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Lisa Barrett
v. Civil N o . 03-317-JD Opinion N o . 2003 DNH 197 Jane Coplan, Warden, New Hampshire State Prison, et a l .
O R D E R
Before the court is pro se plaintiff Lisa Barrett, an inmate
at the New Hampshire State Prison (“NHSP”), who has filed suit
pursuant to 42 U.S.C. § 1983 against a number of NHSP employees.
Barrett alleges that the defendants have violated her1 rights
under the Eighth Amendment2 by failing to adequately treat her
1 The court recognizes that, although plaintiff is biologically male, it is painful to her to be referred to with a male pronoun. Therefore, because it does not appear that referring to Barrett as “she” will impair the clarity of this Order, I will refer to Barrett as “she.” See Farmer v . Perrill, 275 F.3d 9 5 8 , 959 n . 1 (10th Cir. 2001); Schwenk v . Hartford, 204 F.3d 1187, 1192 n . 1 (9th Cir. 2000); Brown v . Zavaras, 63 F.3d 967, 968 n . 1 (10th Cir. 1995) (stating practice of referring to litigants as the record suggests they prefer to be addressed); but see Kosilek v . Maloney, 221 F.Supp.2d 156, 158 n . 1 (D.Mass. 2002) (recognizing that courts have referred to biologically male transsexuals as “she” but finding that clarity of the memorandum required use of male pronoun). 2 Barrett indicates that her complaint is based on federal constitutional law and state law. Although she does not discuss for serious medical needs while she has been incarcerated at the
NHSP. As Barrett is proceeding both pro se and in forma
pauperis, the complaint is before me for preliminary review. See
United States District Court for the District of New Hampshire
Local Rules (“LR”) 4.3(d)(2). For the reasons stated herein, I
order that the complaint be served on the defendants in their
individual capacities. See id.; 28 U.S.C. § 1915(e)(2)(B). In a
Report and Recommendation issued simultaneously with this Order,
I recommend that any claims asserted against the defendants in
their official capacities be dismissed.
Standard of Review
In reviewing a pro se complaint, the court is obliged to
construe the pleading liberally. See Ayala Serrano v . Lebron
Gonzales, 909 F.2d 8 , 15 (1st Cir. 1990) (following Estelle v .
Gamble, 429 U.S. 9 7 , 106 (1976) to construe pro se pleadings
liberally in favor of the pro se party). “The policy behind
affording pro se plaintiffs liberal interpretation is that if
they present sufficient facts, the court may intuit the correct
her state law claims, presuming that they are based on the same facts as the federal claims, I will exercise the supplemental jurisdiction of this Court and allow Barrett’s state law claims to proceed at this time. See 28 U.S.C. § 1367.
2 cause of action, even if it was imperfectly pled.” Ahmed v .
Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), cert. denied,
Ahmed v . Greenwood, 522 U.S. 1148 (1998).
At this preliminary stage of review, all factual assertions
made by the plaintiff and inferences reasonably drawn therefrom
must be accepted as true. See Aulson v . Blanchard, 83 F.3d 1 , 3
(1st Cir. 1996) (stating the “failure to state a claim” standard
of review and explaining that all “well-pleaded factual
averments,” not bald assertions, must be accepted as true). This
review ensures that pro se pleadings are given fair and
meaningful consideration. See Eveland v . Dir. of C.I.A., 843
F.2d 4 6 , 49 (1st Cir. 1988). Applying this standard, the facts
as related by Barrett are recounted here.
Background3
Lisa Barrett is a NHSP inmate who suffers from gender
identity disorder (“GID”), otherwise known as transsexualism.4
3 It is worth noting that the facts alleged by Barrett bear a striking, and at times, verbatim, resemblance to those found by the District of Massachusetts in Kosilek v . Maloney, 221 F.Supp.2d 156 (D.Mass. 2002). 4 Transsexualism: “[A] disturbance of gender identity in which the affected person has overwhelming desire to change anatomic sex stemming from the fixed conviction that he or she is a member of the opposite sex; such persons often seek hormonal
3 Barrett was born biologically male, but is psychologically and
emotionally female. Prior to her incarceration, Barrett had
lived as a female since the age of seventeen, and had cross-
dressed at a much earlier age pursuant to her long-held belief
that she i s , in fact, a female.
In the early 1990s, prior to her incarceration, Barrett
received female hormones from a physician. When she was
incarcerated pretrial at the Belknap County House of Correction
prior to her transfer to NHSP, the medical department there
continued to provide Barrett with female hormones, resulting in
some physiological changes, including minor breast development.
Upon her intake to NHSP, Barrett was examined by a NHSP physician
who stopped her hormone treatments. Barrett advised the NHSP
medical staff of her transsexuality, but was denied treatment for
that condition.
During the mid-1990s, Barrett was housed at the Secure
Housing Unit at the NHSP. During that time, she made numerous
attempts at both suicide and self-castration, both, she alleges,
resulting from her untreated GID. Since October of 1997, Barrett
and surgical treatment to bring their anatomy into conformity with their belief.” Dorland’s Illustrated Medical Dictionary, (28th ed. 1994), at 1735.
4 states that she has lived in general population at the NHSP, and
has attempted, to the extent possible, to modify her appearance
and behavior in order to live as a woman.
On July 2 2 , 2002, Barrett submitted a request slip to Warden
Jane Coplan explaining that her GID presented a serious medical
need and requesting appropriate treatment, including hormone
treatment for a later sex reassignment surgery and the ability to
purchase items available to female inmates. Barrett received a
reply from Coplan advising that Coplan had no legal obligation to
grant any of Barrett’s requests. On August 9, 2002, Barrett
replied to Coplan advising her of court rulings requiring that
prisons provide treatment for inmates with GID. On August 1 2 ,
2002, Coplan requested documentation of legal precedent for
Barrett’s assertion. On August 1 4 , 2002, Barrett reports that
she provided Coplan with documentation supporting her legal
position. On September 2 4 , 2002, Coplan advised Barrett that she
would not be allowed to dress as a woman at the NHSP because it
would put her in danger of assault, and that she would not be
allowed to be housed at the women’s prison because she is a male
inmate.
On July 2 2 , 2002, Barrett sent a request slip to the NHSP
5 mental health department describing her emotional distress at
having to live with male genitalia, and explicitly threatening to
mutilate her own male genitalia. As a result of that slip, NHSP
Nurse Practitioner Cathy Fontaine scheduled a mental health
appointment for Barrett on August 1 9 , 2002. Barrett submitted an
additional request slip to the mental health department
requesting treatment. On August 1 9 , 2002, Barrett met with
Fontaine and discussed her transsexualism and her desire to be
treated for GID.
Fontaine provided the information she received from Barrett
to NHSP physician David Freedman, a gynecologist. On September
2 0 , 2002, Freedman responded, indicating that NHSP does not
perform or approve sex reassignment surgery or pre-operative
hormone treatment. On September 2 1 , 2002, Barrett sent a request
to Freedman addressing his desire to be evaluated for hormone
therapy and to receive treatment for GID. On October 2 , 2002,
Freedman responded that sex reassignment is a lengthy process
that involves a period of living in the community as a woman, and
that such an option would not be appropriate in a prison setting
and would therefore not be available to Barrett. Barrett was
advised to pursue his GID treatment after he was released from
6 prison. Barrett also met with NHSP physician Richard Fellows a
couple of times and discussed with Fellows her desire to be
treated for GID. Barrett was twice scheduled for personality
testing, but both times, the testing appointment was cancelled by
NHSP staff.
Barrett contends that she has sought treatment for her
transsexuality at NHSP since 1994. Prison officials, she claims
were well aware of the risk she posed to either kill herself or
to attempt to mutilate herself. Despite that, she was not
provided with any psychological or other treatment by any medical
professional experienced with GID. Barrett alleges that the
blanket policy at the NHSP of not considering hormone or surgical
treatment for people with GID, without regard to the
individualized medical need presented by the individual patient
suffering from the condition, prevented her from being considered
for appropriate treatment for her serious medical needs.
Discussion
1. Inadequate Medical Care Claim5
The Eighth Amendment protects prison inmates from prison
5 The claims as identified in this Order will be considered to be the claims in this case for all purposes. If the plaintiff objects to the identification of the claims herein, she must do so by proper objection or motion to amend her complaint.
7 officials acting with deliberate indifference to their serious
medical needs. See Farmer v . Brennan, 511 U.S. 825, 831 (1994).
To assert a viable cause of action for inadequate medical care,
an inmate must first state facts sufficient to allege that the
plaintiff has a serious medical need for which adequate care has
not been provided. Farmer, 522 U.S. at 831; Rhodes v . Chapman,
452 U.S. 337 (1981); Estelle, 429 U.S. at 106. The inmate must
then allege that a responsible prison official was aware of the
need or of the facts from which the need could be inferred, and
still failed to provide treatment. Id. A serious medical need
is one that involves a substantial risk of serious harm if it is
not adequately treated. Kosilek v . Maloney, 221 F.Supp.2d 156,
180 (D.Mass. 2002) (citing Farmer, 511 U.S. at 835-47). The
First Circuit has defined a serious medical need as one “‘that
has been diagnosed by a physician as mandating treatment, or one
that is so obvious that even a lay person would easily recognize
the necessity for a doctor’s attention.’” Mahan v . Plymouth
County House of Corr., 64 F.3d 1 4 , 18 (1st Cir. 1995) (quoting
Gaudreault v . Mun. of Salem, 923 F.2d 203, 208 (1st Cir. 1990)).
The Eighth Amendment’s guarantee of adequate medical care
applies to both mental health and physical health needs.
8 Torracco v . Maloney, 923 F.2d 2 3 1 , 234 (1st Cir. 1991).
“Adequate medical care” requires treatment by qualified medical
personnel who provide services that are of a quality acceptable
when measured by prudent professional standards in the community,
tailored to an inmate’s particular medical needs, and that are
based on medical considerations. United States v . DeCologero,
821 F.2d 3 9 , 42-43 (1st Cir. 1987). This does not mean that an
inmate is entitled to the care of his or her choice, simply that
the care must meet minimal standards of adequacy. Deliberate
indifference may be found where the medical care provided is “so
clearly inadequate as to amount to a refusal to provide essential
care.” Toracco, 923 F.2d at 234. Constraints effected by the
prison settings may affect the choice of care provided, and may
be relevant to whether or not inadequate care was provided with a
deliberately indifferent mental state on the part of prison
officials. Wilson v . Seiter, 501 U.S. 2 9 4 , 302 (1991). However,
the Eighth Amendment does not permit necessary medical care to be
denied to a prisoner because the care is expensive or because it
might be controversial or unpopular. See Kosilek, 221 F.Supp.2d
at 181-83 (internal citations omitted) (discussing the tension
between penological concerns and the necessity of providing
9 adequate medical care to prison inmates). A blanket policy that
prohibits a prison’s medical staff from making a medical
determination of an individual inmate’s medical needs and
prescribing and providing adequate care to treat those needs
violates the Eighth Amendment. Id. at 183.
2. Gender Identity Disorder
GID is a serious condition recognized by the medical
community that frequently requires treatment, after evaluation by
a medical professional experienced with GID. See Kosilek, 221
F.Supp.2d at 184. Treatment may involve psychotherapy,
medication, hormone treatment or even surgery, depending on the
individual patient. Id. There is a recognized professional
standard of care for GID in the medical community. Id. a t . 158.
Barrett has alleged that she suffers from GID, a serious
medical problem. She further alleges that she has been denied
even an evaluation for psychological, medical or surgical
treatment for the disease. She further asserts that the medical
care she has received does not comport with standards of care for
her affliction that are recognized by the professional medical
community. She has therefore satisfied the objective prong of an
Eighth Amendment claim for inadequate medical care, as she has
10 alleged that she has a serious medical need for which she is not
being provided treatment. Barrett has further claimed that the
prison officials in question were aware of her need, both because
she advised them in writing of her diagnosis and her need for
treatment, and because while she was an inmate in a carefully
monitored housing unit, she made numerous suicide and self-
castration attempts. Coplan was also aware of Barrett’s attempts
to hurt or kill herself. Despite all of this, neither the
prison’s administration, medical staff or mental health staff
evaluated Barrett for diagnosis and treatment for GID or provided
her with any treatment for GID. These facts sufficiently allege
that the defendants have been deliberately indifferent to
Barrett’s serious medical needs to allow this action to proceed
against the defendants.
3. Individual Capacity Suits
Barrett has named five individual defendants to this suit:
Phil Stanley, Commissioner of the New Hampshire Department of
Corrections, Coplan, Freedman, Fellows and Fontaine. Barrett has
alleged sufficient facts against Coplan, Freedman, Fellows, and
Fontaine to allow this action to proceed against each of them in
their individual capacities. Liberally construing the complaint,
11 I find that although she has not made specific allegations
against him, except that he is the Commissioner of Corrections,
Barrett seeks to sue Stanley individually in his supervisory
capacity. “Supervisory liability under § 1983 cannot be
predicated on a respondeat theory, but only on the basis of the
supervisor’s own acts or omissions.” Matos v . Toledo Davila, 135
F.3d 1 8 2 , 192 (1st Cir. 1998). A supervisor must be “either a
primary actor involved i n , or a prime mover behind, the
underlying violation.” Camilo-Robles v . Zapata, 175 F.3d 4 1 , 43-
44 (1999). There must be “an affirmative link, whether through
direct participation or through conduct that amounts to
condonation or tacit authorization.” Id. at 4 4 . To the extent
that Barrett alleges that the defendants in this case were acting
in accordance with a policy that prohibited any and all hormone
or surgical treatment for inmates suffering from GID, regardless
of their medical condition, I find that she has alleged a policy
sweeping enough that it is reasonable to assume, for purposes of
preliminary review, that the Commissioner of Corrections has at
least tacitly approved the policy. Accordingly, I will allow the
action to proceed against Stanley in his individual capacity.
12 4. Official Capacity Suits
Barrett has sued the defendants in their official
capacities. It is well-settled that the Eleventh Amendment bars
suits against state entities and state agents working in their
official capacities unless the state has expressly waived
immunity, which has not been done by New Hampshire for actions
brought under § 1983. See Puerto Rico Aqueduct & Sewer Auth. v .
Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993) (absent waiver,
neither a State nor agencies acting under its control may be
subject to suit in federal court); Will v . Michigan Dep’t of
State Police, 491 U.S. 5 8 , 71 (1989) (holding that neither a
state nor its officials acting in their official capacities are
“persons” under § 1983). Official capacity suits against
officers of an agency are simply “another way of pleading an
action against an entity of which an officer is an agent.”
Monell, 436 U.S. at 690 n.55. To the extent Barrett brings
official capacity claims against the defendants, who are all
employees of the NHSP, I will recommend the dismissal of those
claims in a Report and Recommendation issued simultaneously with
this Order.
13 Conclusion
Without commenting on the merits of the suit, I find that
Barrett has stated claims upon which relief may be granted for
inadequate medical care against the defendants in their
individual capacities. Accordingly, I order the complaint
(document n o . 2 ) be served on defendants. Pursuant to the
Agreement of Acceptance of Service entered into between the Clerk
of Court and the Attorney General of the State of New Hampshire
(“AG”), the Clerk’s office is directed to forward to the AG’s
office, by certified mail, return receipt requested, copies of
this order, the Report and Recommendation, and the complaint
(document n o . 2 ) . See LR 4.3(d)(2)(C). Within thirty days from
receipt of these materials, the AG will submit to the court an
Acceptance of Service notice specifying those defendants who have
authorized the AG’s office to receive service on their behalf.
When the Acceptance of Service is filed, service will be deemed
made on the last day of the thirty-day period.
As to those defendants who do not authorize the AG’s office
to receive service on their behalf or whom the AG declines to
represent, the AG shall, within thirty days from receipt of the
aforementioned materials, provide a separate list of the last
14 known addresses of such defendants. The Clerk’s office is
instructed to complete service on these individuals by sending to
them, by certified mail, return receipt requested, copies of
these same documents.
Defendants are instructed to answer or otherwise plead
within twenty days of acceptance of service. See Fed. R. Civ. P.
12(a)(1)(A).
Plaintiff is instructed that all future pleadings, written
motions, notices, or similar papers shall be served directly on
the defendants by delivering or mailing the materials to them or
their attorneys, pursuant to Fed. R. Civ. P. 5 ( b ) .
SO ORDERED.
James R. Muirhead United States Magistrate Judge
Date: November 1 9 , 2003
cc: Lisa Barrett, pro se