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Oakleaf v. Martinez

United States District Court, D. New Mexico

March 6, 2018

JOHN OAKLEAF, Plaintiff, [1]
RICARDO MARTINEZ, Warden of the Otero County Prison Facility in his official capacity, CHRIS PASCALE, Health Services Administrator of the Otero County Prison Facility in her official capacity, MANAGEMENT & TRAINING CORPORATION, a corporation based in Centerville, Utah, DAVID JABLONSKI, Secretary of the New Mexico Corrections Department in his official capacity, and DAVID SELVAGE, Health Services Administrator for the New Mexico Corrections Department in his official capacity, Defendants.



         This matter is before the Court on Plaintiff's Motion for Preliminary Injunction against Defendants Jablonski and Selvage and Request for Expedited Hearing, filed on February 6, 2018. (Doc. 209.) Jurisdiction arises under 28 U.S.C. § 1331. The Court held a hearing on the matter on Tuesday, February 27, 2018.

         Plaintiff, a transgender woman serving a 15-year sentence, has sought “clinically appropriate medical treatment” from the New Mexico Corrections Department (NMCD) for gender dysphoria since at least November 2012. (Doc. 209 at 1 (citing Doc. 210 ¶¶ 1, 7).) Plaintiff alleges that the NMCD has “ignored or denied” each request and contends that Defendant's “continued refusal to provide adequate treatment . . . has inflicted enormous harm, continues to worsen her condition, and creates a terrible risk of future serious harm and potentially death.” (Id. at 2 (citing Doc. 211 ¶ 72).) While NMCD has so far refused to give Plaintiff the diagnosis she seeks, the Court finds Plaintiff has failed to show that NMCD has been deliberately indifferent to a serious medical need. Accordingly, the Court will deny Plaintiff's motion.

         I. Factual and Procedural Background

         A. Gender Dysphoria: the Diagnosis and Treatment

         Gender dysphoria, formerly known as “gender identity disorder” (see Doc. 231-A at 3), “is a medical condition characterized by clinically significant distress resulting from the misalignment between a person's gender identity-one's innate sense of belonging to a particular gender-and the sex the person was assigned at birth.” (Doc. 209 at 2 (citing Doc. 211 ¶¶ 11-12).) Gender dysphoria is a condition recognized by the American Medical Association, the American Psychological Association, and the American Psychiatric Association (in the Diagnostic and Statistical Manual of Mental Disorders, Fifth ed. (2013) (“DSM-V”)). (Id. (citing Doc. 211 ¶¶ 13-14).)

         The World Professional Association for Transgender Health (WPATH), “the leading medical authority on gender dysphoria[, ] . . . has developed Standards of Care (‘SOC') for the treatment of the condition.” (Id. at 1, 2 (citing Doc. 211 ¶ 19).) The SOC “are recognized as authoritative by every major medical and mental health association . . . .” (Id. (citing Doc. 211 ¶ 19).) The SOC “provide for the following treatments, some or all of which will be required depending on the needs of the individual patient:”

(1) Social transition, or “[c]hanges in gender expression and role” (i.e., “dressing, grooming and otherwise outwardly presenting oneself in a manner consistent with one's gender identity”);
(2) Hormone therapy (“medically indicated” for persons “with persistent and well-documented gender dysphoria”);
(3) “Surgery to change primary and/or secondary sex characteristics”; and
(4) Psychotherapy.

(Id. at 2-3 (citing Doc. 211 ¶¶ 22, 26-27).)

         Withholding necessary treatments for gender dysphoria “leads to serious medical problems, including clinically significant psychological distress, dysfunction, debilitating depression, self-harm and suicidality.” (Id. at 3 (citing Doc. 211 ¶¶ 14-15).) “Transgender prisoners . . ., and transgender women in particular, are at an exceeding high risk for severe consequences[, ] . . . often resort[ing] to self-surgery to remove their testicles or even suicide.” (Id. at 3-4 (citing Doc. 211 ¶ 17).)

         The National Commission on Correctional Healthcare “recommends that the medical management of prisoners with gender dysphoria should follow the WPATH” SOC. (Id. at 4.) “[T]he SOC are clear that treatment for gender dysphoria in institutional settings can and should follow the same protocols as available in the community.” (Id. (citing Doc. 211 ¶¶ 32-34).)

         B. Plaintiff's History of Gender Dysphoria

         Plaintiff, currently incarcerated at the Lea County Correctional Facility (LCCF), was arrested in 2008, and pleaded guilty in 2009, to two counts of Criminal Sexual Contact of a Minor (under the age of 13) in the Second Degree. (See Doc. 226-1 at 6-9.) Plaintiff was sentenced to 15 years' imprisonment and is scheduled to be released in 2021. (See Id. at 26; see also Doc. 210 ¶ 1.) As supported by the evidence submitted to the Court, Plaintiff was apparently living as a man at the time of his arrest. (See Doc. 226-1 at 6-9.) Plaintiff entered prison with diagnoses of adult antisocial behavior, “rule out” (R/O) schizoaffective disorder, and a self- report of a learning disorder “not otherwise specified” (NOS), bipolar disorder, and depression. (Id. at 16, 19.) Plaintiff was taking several psychotropic medications at the time she was incarcerated, including Risperdal, Zoloft, Paxil, and Abilify. (Id. at 19.)

         Defendants' mental health providers have regularly changed Plaintiff's diagnoses and prescriptions over the course of her incarceration. (See, e.g., id. at 24 (diagnoses of psychosis NOS and mixed personality disorder; prescriptions of Zoloft and Risperdal); id. at 25 (prescription changed to Celexa); id. at 44 (prescription changed to Citalopram, Hydroxyzine); id. at 47 (diagnoses changed to psychotic disorder NOS, bipolar disorder NOS); id. at 48 (prescriptions changed to Risperdal, Celexa); id. at 59 (diagnoses changed to psychotic disorder NOS, polysubstance dependence, personality disorder NOS); id. at 85 (diagnosis changed to mood disorder NOS; prescriptions changed to Celexa); id. at 91 (prescription changed to Paxil); id. at 93 (diagnosis changed to major depressive disorder); id. at 95 (discontinue all psychotropic medications at Plaintiff's request because she did not like her medications being crushed); id. at 130 (diagnoses changed to major depressive disorder, rule out gender identity disorder); id. at 136 (began prescription for Paxil); id. at 146 (diagnoses changed to bipolar disorder, by history, mild depression and anxiety, sexual disorder NOS); id. at 148, 151, 155 (changed prescription to Risperidone; provider noted that Plaintiff denied requesting Risperidone because of its “feminizing adverse reaction” and also that it is contraindicated due to “a drug/drug interaction that can affect heart rhythm”); id. at 167 (diagnoses changed to schizophrenia, simple, and sexual disorder NOS); id. at 175 (prescriptions changed to Sertraline (Zoloft), Risperdal); id. at 176 (diagnoses changed to schizophrenia paranoid type, bipolar type); id. at 179 (diagnosis changed to schizoaffective disorder, bipolar type); id. at 185 (prescriptions changed to Sertraline, Vistaril, Risperdal); id. at 194 (diagnoses changed to schizoaffective disorder, bipolar type, gender dysphoria).

         Plaintiff first raised her concerns regarding gender dysphoria to LCCF staff on November 13, 2012.[2] (See Id. at 128-29.) On that date, Plaintiff told one of the facility's mental health providers, S. Massengill-Munro, LPCC (“Ms. Munro”), that she wanted to talk about gender dysphoria, [3] and she did not feel comfortable talking to a male therapist. (Id.) Ms. Munro noted that Plaintiff was “focused on gender re-assignment surgery and NMCD ‘paying for it.'” (Id. at 129.) Plaintiff's regular clinician, Scott Adams, M. Ed., LPCC, noted on January 9, 2013, that he advised Plaintiff to use caution regarding “information which could endanger his[4] safety.” (Id. at 129.)

         Plaintiff has received a variety of responses to her requests for treatment for gender dysphoria. On April 15, 2013, Mr. Adams noted that Plaintiff requested to see a “transgender specialist, ” and Mr. Adams told her that “none are available.” (Id. at 129.) In September 2013, Dr. Richard Laughter, M.D., informed Plaintiff she would need “several years” of therapy to get a diagnosis of gender dysphoria, and that “estrogen therapy is contraindicated due to” risks associated with Plaintiff's history of a stroke. (Doc. 30-16 at 33.) Also in September 2013, Chris Pascale, Health Services Administrator, told Plaintiff that she “arrived to OCPF on 07-17-13 as a male and during his stay at this facility, will remain as such. Your request for a written statement regarding your diagnosis will not be given while at this facility.” (Doc. 212-1.) On June 21, 2014, Tala Ibrahim, LPCC, noted Plaintiff's continued “focus on unrealistic expectations while incarcerated such as wearing [a] bra or requesting a laser hair removal machine.” (Doc. 226-1 at 153.) Plaintiff filed a formal request for a bra and “female underwear” on June 21, 2014. (Doc. 212-3.) D. Holmes, LVN, replied that “[t]his facility does not provide female underwear to inmates with male genitalia. Please cease with these requests as you have been answered on more than one occasion . . . .”[5] (Id.) In September 2014, Plaintiff asked to be seen by a transgender specialist. (Doc. 10-3 at 3.) The provider responded, “The state of NM will not authorize this referral.” (Id.) On November 29, 2017, Plaintiff asked for treatment for gender dysphoria. (Doc. 232-2.) Cynthia Lose, Psy. D., responded, “This issue is medical, not mental health. Mental health has no knowledge, training or education on the medical treatment of gender dysphoria.” (Id.) On December 13, 2017, Plaintiff asked about hormone treatment. (Doc. 226-1 at 193.) Dr. Lose's response, noted on the treatment record, was that she “explained the policy and procedure for hormone replacement within NMCD (had to have come into prison with that status).” (Id.)

         On December 18, 2014, the “Behavioral Health Treatment team met with [the] Mental Health Bureau Chief, Dr. McDermott, ” regarding Plaintiff's request for a diagnosis of gender dysphoria. (Id. at 161.) Ms. Ibrahim noted that the team reviewed the DSM-V criteria for gender dysphoria “along with [Plaintiff's] evaluations, history, and other relevant documentation in [the] psychological file to determine appropriate level of care.” (Id.) The “review indicated limited supportive evidence on significant distress on inmate global functioning[, ]” and the “team determined that [Plaintiff] does not meet criteria for the diagnosis of Gender Dysphoria due to insufficient history supporting diagnosis.” (Id.) Ms. Ibrahim's notes reflected that Plaintiff would continue to receive counseling, medication management, and clinical support to meet her psychological needs. (Id.)

         Ms. Jillian Shane, Inspector General and Prison Rape Elimination Act (PREA) Coordinator for the NMCD, states that Plaintiff “undergoes screening twice a year by” certain case managers. (Doc. 227 ¶ 8.) Plaintiff's most recent screening occurred on November 14, 2017. (Id.; see also Doc. 227-C (listing “Assessment Results” as “No risk for sexually aggressive behavior” (Doc. 227-C at 1, 4); “Low risk of sexual victimization” (Doc. 227-C at 2, 3, 5); “Low risk sexually aggressive behavior” ...

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