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Mitchell v. Kallas

United States District Court, W.D. Wisconsin

August 25, 2016

ROY MITCHELL, Plaintiff,
v.
KEVIN KALLAS, et al. Defendants.

          OPINION & ORDER

          WILLIAM M. CONLEY District Judge

         On April 7, 2015, this court granted plaintiff Roy Mitchell leave to proceed under 42 U.S.C. § 1983 on Eighth Amendment claims against Drs. Kevin Kallas and Dawn Laurent for their alleged failure to treat Mitchell for gender dysphoria while she was incarcerated at Columbia Correctional Institution (“CCI”). (Dkt. #11.) Before the court are plaintiff's Motion for Partial Summary Judgment (dkt. #86) and defendants' Motion for Summary Judgment (dkt. #110). Since the undisputed facts do not support a finding that Kallas and Laurent acted with deliberate indifference to Mitchell's need for treatment, plaintiff's motion will be denied and defendants' motion will be granted. Moreover, even if a reasonable jury could find deliberate indifference on this record, both defendants are entitled to qualified immunity given the unsettled law and varying protocols for gender dysphoria. Accordingly, judgment will be entered in defendants' favor.

         UNDISPUTED FACTS[1]

         I. Parties

         Roy Mitchell is a former CCI inmate. While biologically male, Mitchell identifies as a female.

         Defendants Drs. Kevin Kallas and Dawn Laurent are both employed by the Wisconsin Department of Corrections (“DOC”). Dr. Kallas is a trained psychiatrist. He has been DOC's Mental Health Director since 2002, overseeing the DOC's mental health care. His responsibilities include supervising the DOC's Psychology Director and Psychiatry Director, assisting in developing mental health policies, and conducting clinical consults on specific cases by request. As such, Kallas does not provide direct clinical treatment to inmates at institutions, and he has never provided direct clinical treatment to Mitchell. Rather, he was involved with assessing and ushering through her requests for hormone treatment.

         Dr. Laurent is a licensed psychologist. She was employed as the Psychological Services Unit (“PSU”) Supervisor at CCI from December 2011 to November 2013. During this time, Laurent was responsible for development, administration and coordination of psychological programs in the unit. In that capacity, Laurent met with Mitchell once, during October of 2012.

         II. DOC's Gender Dysphoria Treatment Generally

         Gender dysphoria is defined by the DOC as:

Discomfort or distress caused by a marked difference between an individual's expressed/experienced gender and that gender that others would assign him or her. A DSM-5 diagnosis of gender dysphoria requires the condition to be present for at least six months and causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.

         Within the DOC, psychologists and psychiatrists together diagnose, monitor and treat inmates with gender dysphoria. However, only psychiatrists have the authority to order or administer hormone treatments.

         During his time as Mental Health Coordinator, Dr. Kallas has been involved with approximately 100 inmates with gender dysphoria. Kallas believes that there are approximately 35 inmates in the DOC with gender dysphoria currently. Kallas also sits on the Gender Dysphoria Committee (the “Committee”), which was created in 2011 to ensure that inmates meeting the DSM criteria for gender dysphoria receive appropriate treatment. Among other endeavors, the Committee consults with outside authorities regarding inmates with gender identity issues.

         One such outside authority is Cynthia Osborne, who holds a Masters of Science in Education and a Masters of Social Work. She is an assistant professor at Johns Hopkins University, and she specializes in providing gender dysphoria evaluations. As a part of her consults, Osborne travels to Wisconsin each year, evaluates selected inmates in person and makes recommendations regarding gender identity diagnoses. Osborne also conducts a monthly conference call for PSU staff at DOC institutions across Wisconsin to discuss questions related to inmates with gender dysphoria issues.

         DOC has also implemented a gender dysphoria policy, DAI #500.70.27. In outlining DOC's treatment of gender dysphoria, the policy takes into consideration various guidance documents, including the World Professional Association for Transgender Health (“WPATH”) standards of care. WPATH standards of care provide clinical guidance for the treatment of transgender patients, but they are “flexible” and can be modified to address the needs of the institutional environment.

         Particularly relevant to the present lawsuit, DAI #500.70.27 permits hormone treatment for inmates with gender dysphoria as a means to feminize the body, reduce gender dysphoria and minimize the risk of depression, anxiety or other impairments. The policy provides that inmates who are not receiving hormonal medication at the time of DOC intake may be started on hormonal medications provided that: (1) the inmate cooperates with DOC staff in obtaining records or other necessary confirmations of previous treatment; and (2) the Committee determines that the hormones are medically necessary and not contraindicated for any reason. As noted above, the Committee can use an outside consultant to make treatment decisions, a practice that is consistent with the WPATH standards of care. The DOC is not, however, bound by any recommendations made by consultants.

         Finally, DOC has a practice not to begin hormone treatment unless an inmate will remain incarcerated for at least six months after treatment begins. DOC justifies this practice on three grounds: (1) the DOC needs six months to assess the benefits of the treatment and any side effects, as well as to determine a proper dose and follow appropriate follow-up laboratory tests to check for signs of cardiovascular impairment and venous thromboembolism; (2) hormone therapy cannot actually begin until the inmate has been screened for medical contraindications; and (3) WPATH standards emphasize the importance of medical screening before administering hormone therapy, as well as consistent clinical and laboratory monitoring during the first year of treatment. While the DOC does not provide treatment after an inmate's release, the Committee has on occasion responded to questions from the Division of Community Corrections agents about conditions of supervision for former inmates with gender dysphoria.

         III. Mitchell's Hormone Treatment Requests

         Before arriving at CCI on October 11, 2011, Mitchell had already been diagnosed with gender dysphoria. Upon her arrival, Dr. Patrick Kumke, a Psychological Associate, met with Mitchell and noted several diagnoses, including gender dysphoria. Kumke also noted that PSU would continue routine clinical monitoring of Mitchell. He further instructed Mitchell to talk to her assigned clinician once she received her housing assignment.

         On November 25 and 27, 2011, Mitchell submitted formal psychological services requests asking for female hormone treatment. Dr. Teresa McLaren from PSU responded that they could discuss these requests during their appointment, which was scheduled for that week. When the two met on November 30, they discussed Mitchell's ongoing nightmares, sleep problems and social habits. Mitchell also asked about the DOC's policy related to gender dysphoria. In response, McLaren advised that the policy was in the process of being finalized, and she would provide a copy to Mitchell once it was complete.

         In December of 2011, Mitchell wrote a follow up request to Dr. Kallas for hormone treatment. In response, Dr. Kallas asked Dr. McLaren to conduct a gender dysphoria assessment on Mitchell. After conducting an exam, Dr. McLaren responded that in her opinion Mitchell should be considered for gender dysphoria treatment by the Committee. The Committee likewise deemed Mitchell an appropriate referral for an evaluation by its consultant from Johns Hopkins, Cynthia Osborne.

         On March 5, 2012, Dr. Kallas wrote to Mitchell, advising that she would be meeting with Osborne for a consultation in April of 2012. (See dkt. #1, Exh. E.) Kallas also told Mitchell to work with Dr. Laurent in assigning her a clinician. At the beginning of April, Mitchell submitted yet another psychological services request, which she directed to ...


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