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 .

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

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,

5 8 , 959 n . 1 (10th Cir. 2001); Schwenk v . Hartford,

, 1192 n . 1 (9th Cir. 2000); Brown v . Zavaras,

, 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,

, 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.;

(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,

, 15 (1st Cir. 1990) (following Estelle v .

Gamble,

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

.

2 cause of action, even if it was imperfectly pled.” Ahmed v .

Rosenblatt,

(1st Cir. 1997), cert. denied,

Ahmed v . Greenwood,

(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,

, 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.,

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,

(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,

(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,

(1981); Estelle,

. 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.

A serious medical need

is one that involves a substantial risk of serious harm if it is

not adequately treated. Kosilek v . Maloney,

(D.Mass. 2002) (citing Farmer,

). 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.,

4 , 18 (1st Cir. 1995) (quoting

Gaudreault v . Mun. of Salem,

(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,

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,

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,

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,

(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.

.

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,

. Treatment may involve psychotherapy,

medication, hormone treatment or even surgery, depending on the

individual patient.

There is a recognized professional

standard of care for GID in the medical community.

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,

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,

1 , 43-

44 (1999). There must be “an affirmative link, whether through

direct participation or through conduct that amounts to

condonation or tacit authorization.”

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.,

(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,

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

15