Supre v. Ricketts

792 F.2d 958

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 2, 1986
• Docket: No. 84-2803
• Status: Published

Opinions

BALDOCK, Circuit Judge.

I. Introduction

Plaintiff-appellee Shauna Supre¹ (plaintiff) is a convicted felon and has been diagnosed as a transsexual. He was in the custody of the Colorado Department of Corrections in January, 1982, when he filed a civil rights action pursuant to 42 U.S.C. § 1983 seeking to obtain what he considered necessary medical treatment for gender dysphoria. The matter went to trial on January 4, 1983, was continued the following day, and the case was ultimately “deemed closed” on January 16,1984, without judicial resolution. On November 26, 1984, plaintiff was awarded $20,910.05 for attorney’s fees and costs, 596 F.Supp. 1532.

Defendants-appellants (defendants) appeal the award of attorney’s fees and costs, arguing that plaintiff is not entitled to such award because he is not a “prevailing party” as required by 42 U.S.C. § 1988.² Their alternative argument is that the award must be reduced because it is excessive. Because we hold that plaintiff is not a prevailing party, defendants’ alternative argument is not addressed.

II. The Facts

Plaintiff entered the Colorado Department of Corrections in 1978 for auto theft and escape. Upon his request, plaintiff was transferred to the Utah State Penitentiary in March, 1980, but was returned to the Colorado prison system in August, 1980. Beginning in September, 1980, he was placed voluntarily in protective custody because of his feminine characteristics and because he was known by the prison population as a “snitch” or informant. He remained in protective custody for the remainder of his term in prison.

Throughout the remainder of 1980, plaintiff engaged in various forms of mutilation of his sex organs. He requested to be treated with estrogen, a female hormone, but this request was denied. A program of counseling by psychologists and psychiatrists was provided, and plaintiff was advised of the dangers of estrogen treatment. After continued attempts at self-mutilation, plaintiff’s testicles became severely injured and were removed surgically by a physician at the Colorado State Hospital in July, 1981.

In August, 1981, Dr. Dennis Kleinsasser, Director of Health Services for the Department of Corrections, informed plaintiff that the Department’s medical staff had studied his request for estrogen and concluded that such treatment would not be warranted because of the dangers involved and because estrogen treatment was but one aspect of an overall plan of treatment which could not be conducted in a prison setting. Thereafter, plaintiff was examined by Dr. Kathleen K. Graze, an endocrinologist, Dr. John D. Glismann, a psychiatrist, and Dr. Robert N. Alsever, an endocrinologist. Drs. Graze and Glismann recommended estrogen treatment, but Dr. Al-sever advised against such treatment. On January 7, 1982, plaintiff filed his civil rights suit. In April, 1982, Dr. Robert McGowan, Director of Medical Services for the Department of Corrections, informed plaintiff that the medical staff determined that the appropriate medical treatment would include testosterone replacement therapy and mental health treatment.

Also in April, 1982, the Department of Corrections issued its “Interim Policy Regarding Sexual Reassignment” which precluded “sexual reassignment evaluation and treatment for gender dysphoria.” A “Transsexual Policy Development Workshop” was conducted in January, 1983, which resulted in a change in the Department’s policy to permit “the full benefit of mental health services and therapies offered by the Department of Corrections.” Scope of Services for Treatment of Transsexualism, Colorado Department of Corrections Interim Rule 405-14 (Feb. 18, 1983). Dr. Kleinsasser testified that this new policy would not preclude estrogen therapy. Record at vol. VII, 47.

The case went to trial on January 4, 1983, but was continued the following day on plaintiff’s motion in order to await the Department of Corrections’ establishment of a policy for the treatment of transsexuals. The court issued an interim order which permitted plaintiff to receive low dosages of estrogen. After continued estrogen therapy, plaintiff developed breast tissue.

In June, 1983, Carlos Baca, assistant superintendent at Colorado’s Centenial Correctional Facility, wrote to the chairman of the Parole Board requesting that plaintiff be paroled to his second sentence so that he would be eligible for commutation of sentence. Mr. Baca pursued this matter because he believed plaintiff to present a difficult management problem. On June 20, 1983, plaintiff made another attempt at self-mutilation of the genital area. On June 25, 1983, plaintiff was paroled, and the Governor of Colorado commuted his sentence on August 30, 1983.

On January 16, 1984, an order was entered deeming the case closed. Plaintiff moved for attorney’s fees and expenses on February 27, 1984, and in November, 1984, his motion was granted.

III. Standard of Review

A district court’s award of attorney’s fees generally is subject to an abuse of discretion standard of review on appeal. E.g., J. & J. Anderson, Inc. v. Town of Erie, 767 F.2d 1469, 1472 (10th Cir.1985). Thus, the underlying factual findings are reversible only if clearly erroneous.³ Fed. R.Civ.P. 52(a). Nevertheless, any statutory interpretation or other legal analysis which provides the basis for the award is reviewable de novo. See generally 5A J. Moore and J. Lucas, Moore’s Federal Practice § 52.03[2] (1985).

The Supreme Court has noted the vexatious nature of the distinction between questions of fact and questions of law. Baumgartner v. United States, 322 U.S. 665, 671, 64 S.Ct. 1240, 1243, 88 L.Ed. 1525 (1944). Mixed questions of law and fact are even more troubling for standard of review purposes. A mixed question is present when the facts are admitted or established and the law is undisputed; the sole issue is whether the law applied to the facts satisfies the statutory standard. Pullman-Standard v. Swint, 456 U.S. 273, 289, n. 19, 102 S.Ct. 1781, 1790, n. 19, 72 L.Ed.2d 66 (1982). Where the mixed question involves primarily a factual inquiry, the clearly erroneous standard is appropriate. If, however, the mixed question primarily involves the consideration of legal principles, then a de novo review by the appellate court is appropriate. See, e.g., United States v. McConney, 728 F.2d 1195, 1199-1205 (9th Cir.1984) (en banc) (holding that the mixed question of exigent circumstance is reviewable de novo as a question of law).

Most appellate courts that have reviewed a district court’s determination of the “prevailing party” issue have independently considered the totality of the circumstances they found in the record. E.g., Gurule v. Wilson, 635 F.2d 782, 791 (10th Cir.1980), as amended, 649 F.2d 754 (1981); J. & J. Anderson, Inc. v. Town of Erie, 767 F.2d 1469 (10th Cir.1985); Hennigan v. Ouachita Parish School Bd., 749 F.2d 1148 (5th Cir.1985); Institutionalized Juveniles v. Sec. of Pub. Wei, 758 F.2d 897, 910-17 (3d Cir.1985); Miami Herald Pub. Co. v. City of Hallandale, 742 F.2d 590 (11th Cir. 1984). But see Posada v. Lamb County, Texas, 716 F.2d 1066, 1072 n. 7 (5th Cir. 1983). Although most appellate courts conduct a de novo review when presented with the “prevailing party” issue, the standard of review is rarely stated.

As already noted, a plaintiff must be a “prevailing party” to recover an attorney’s fee under § 1988. A plaintiff may prevail in the absence of a judicial determination or full litigation. Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2574, 65 L.Ed.2d 653 (1980). The test for determining whether a plaintiff is a prevailing party when there has been no adjudication was recently set forth in J. & J. Anderson, 767 F.2d at 1475, and contains two elements which must be satisfied. The plaintiff must demonstrate that his lawsuit is linked causally to the relief obtained, i.e. the suit must be a “substantial factor or a significant catalyst” in prompting the defendants to act or cease their behavior. He must also demonstrate that the defendant’s conduct in response to the lawsuit was required by the Constitution or federal law, i.e. the defendant’s actions must be legally required.⁴

The first element primarily involves a factual inquiry: whether the lawsuit caused the defendant to act. The trial court is in the best position to evaluate this issue because it has dealt with the parties and can evaluate the strengths and weaknesses of the case. If the “prevailing party” issue turns on this first element, then the appellate court should apply the clearly erroneous standard of review. The second element primarily requires legal analysis, although the facts certainly bear on the outcome. Because this second element stresses legal analysis, if the “prevailing party” issue is resolved by whether a defendant’s actions are legally required, then de novo review is appropriate.

IV. Discussion

In this case, it is evident from the Second Amended Complaint that plaintiff sought to compel the defendants to provide him with adequate health care services, a safe living environment, “appropriate classification and placement decisions,” and protect his rights to privacy, “personality and existence as a transsexual in the female gender.” The district court found plaintiff’s lawsuit to have a “catalytic effect ... in obtaining treatment and release.” The court’s interim order allowing plaintiff to take low levels of female hormones was found to be the result of plaintiff’s lawsuit. The court also determined that plaintiff’s release was caused by the lawsuit because the hormone treatments led to the development of breast tissue which created a management problem at the prison which, in turn, led to plaintiff’s release. The district court, however, did not address whether these results were required by law.

The district court’s conclusion that the lawsuit is causally linked to the relief obtained is tenuous. Although plaintiff was permitted to obtain low levels of female hormones through the court’s interim order, it is unclear whether that treatment would have continued as a result of judicial intervention because it was never determined whether such treatment was a serious medical necessity. The Department of Corrections amended its policy to permit hormone treatment, but such policy changes were being studied prior to plaintiff’s lawsuit. Additionally, it is apparent from the record that plaintiff’s management problems were not due solely to his breast development, but were caused by his repeated attempts at self-mutilation. Thus, the link between the breast development as a result of the hormone treatment required by the interim order and plaintiff’s ultimate release from prison is extremely weak. Giving due deference to the district court’s findings and applying the clearly erroneous standard, we are convinced that the court erred in finding a link between the lawsuit and the results obtained.

An independent review of the record also leads to the conclusion that defendant’s conduct was not legally required. There can be no question that the State of Colorado was not required by law to release plaintiff from prison. We also are unable to conclude that federal law requires prison officials to administer female hormones to a transsexual inmate. The eighth amendment protects prison inmates from “deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). To establish entitlement to female hormone treatment pursuant to the eighth amendment, plaintiff was required to prove that withholding such treatment would have constituted “deliberate indifference to serious medical needs.” Id. It was established that some form of therapy was necessary after plaintiff’s castration and he was offered testosterone replacement by Dr. Robert McGowan of the Department of Corrections. Although Dr. John Glismann, a psychiatrist, and Dr. Kathleen Graze, an endocrinologist, recommended estrogen therapy, Dr. Robert Alsever, an endocrinologist, Dr. Dennis Kleinsasser, Director of Medical Services for the Department of Corrections, and the Department of Corrections medical staff disagreed. The record reflects the controversial nature of such therapy.

It is apparent from the record that there were a variety of options available for the treatment of plaintiff’s psychological and physical medical conditions. It was never established, however, that failing to treat plaintiff with estrogen would constitute deliberate indifference to a serious medical need. While the medical community may disagree among themselves as to the best form of treatment for plaintiff’s condition, the Department of Corrections made an informed judgment as to the appropriate form of treatment and did not deliberately ignore plaintiff’s medical needs. The medical decision not to give plaintiff estrogen until further study does not represent cruel and unusual punishment. This case, like Estelle, does not present a situation where there was a total failure to give medical attention. At most, plaintiff might have made a case for negligence or medical malpractice, but he could not have established a constitutional violation. Estelle v. Gamble, 429 U.S. at 105-06, 97 S.Ct. at 291-92; Daniels v. Galbreath, 668 F.2d 477, 482 (10th Cir.1982). See generally Davidson v. Cannon, — U.S. -, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986). Defendants’ actions, therefore, were not required by the Constitution or federal law, and plaintiff cannot be considered a prevailing party within the meaning of § 1988.

V. Conclusion

Plaintiff has failed to satisfy either prong of the “prevailing party” test. The lawsuit was not causally linked to the relief obtained and, based on the record in this case, defendants’ conduct was not legally required. Because plaintiff cannot be considered a prevailing party within the meaning of 42 U.S.C. § 1988, he is not entitled to an award of attorney’s fees.

The district court’s order awarding appellee costs and attorney’s fees is reversed and remanded to the district court with instructions to vacate the order.

1 . Plaintiffs name was changed from Ralph Spencer to Shauna Christine Supre in 1980. Although plaintiff considers himself to he a woman, male pronouns will be used throughout this opinion.

2 . This statute provides, in pertinent part, as follows: "In any action or proceeding to enforce a provision of section ... 1983 ..., the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’ s fee as part of the costs."

3 . The Supreme Court has defined that standard as follows:

A finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.

United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).

4 . This two-part test is thoroughly explained in the concurrence. I agree completely with the analysis contained therein.